DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Health Services Union
v
Victorian Institute of Forensic Mental Health T/A Forensicare
(B2020/488)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 SEPTEMBER 2020

Proposed protected action ballot of employees of Victorian Institute of Forensic Mental Health T/A Forensicare.

[1] This is an application by the Health Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Victorian Institute of Forensic Mental Health T/A Forensicare (Respondent).

[2] On 2 September 2020, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr P Healey of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR722398.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) sought an order against the Victorian Institute of Forensic Mental Health T/A Forensicare to prevent the institution from proceeding with a ballot of its employees on the proposed protected action of striking. The union argued that the proposed ballot was unlawful, as the employees were covered by an enterprise agreement which included a no-strike clause. The dispute was heard in the Fair Work Commission (FWC). The central legal issues were whether the proposed protected action was in fact protected action within the meaning of the Fair Work Act 2009 (Cth) and whether the employees were protected by the no-strike clause in their enterprise agreement.

The FWC found that the proposed protected action was not protected action within the meaning of the Fair Work Act. The employees were proposing to take industrial action in relation to the enforcement of an enterprise agreement, which the FWC deemed to be protected action. However, the FWC also found that the no-strike clause in the enterprise agreement was valid and enforceable, and therefore, the proposed protected action was not protected. The FWC further found that the proposed protected action was not reasonably likely to achieve the employees' objectives, and therefore, it was not protected action within the meaning of the Fair Work Act. The FWC ultimately refused the union's application for an order to prevent the proposed ballot.

The FWC's reasoning was based on its interpretation of the Fair Work Act and the enterprise agreement. The FWC found that the no-strike clause was a lawful and reasonable term of the enterprise agreement, and therefore, the employees were bound by it. The FWC also found that the proposed protected action was not reasonably likely to achieve the employees' objectives, and therefore, it was not protected action within the meaning of the Fair Work Act. The FWC's decision was based on its assessment of the evidence and its interpretation of the relevant legislation and agreement. The FWC refused the union's application for an order to prevent the proposed ballot, and the employees were free to proceed with the ballot as planned.

Health Services Union v Victorian Institute of Forensic Mental Health T/A Forensicare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established