Health Services Union v Victorian Institute of Forensic Mental Health Trading as Forensicare Summary

[2025] FWC 715

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Health Services Union
v

Victorian Institute of Forensic Mental Health Trading as Forensicare

(B2025/468)

COMMISSIONER REDFORD

MELBOURNE, 13 MARCH 2025

Proposed protected action ballot of employees of Victorian Institute of Forensic Mental Health

This is an application by the Health Services Union (HSU or 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 (Forensicare or Employer).

During the course of 12 March 2025 email correspondence was engaged between HSU, Forensicare and the Commission within which it appeared Forensicare objected to the application on the basis of the form of some of the questions proposed. Some of this controversy was resolved, but by the afternoon, it did not appear there was an accord in relation to three of the proposed questions. The matter was allocated to my chambers, and I listed hearing to occur on 13 March 2025 in order to determine the application.

During the morning of 13 March 2025, I was advised that there is no objection to the application by Forensicare. Both parties also confirmed their agreement to the form of a draft Order.

On the basis of the material before me, including the declaration of Paul Healey, State Secretary, setting out the steps taken by the HSU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Forensicare, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 25 March 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR785151.

In due course, the Commission will take the steps necessary to conduct the s.448A compulsory conciliation conference. An Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference will be issued. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

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CaseChat Overview and Summary

The Health Services Union (HSU) made an application to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of the Victorian Institute of Forensic Mental Health (Forensicare). The application was prompted by the need to ballot the employees regarding proposed protected actions, which, if approved, could lead to industrial action. Forensicare initially objected to the form of some questions proposed for the ballot but subsequently withdrew its objections, leading to an agreement between the parties on the form of a draft order. The Commission was satisfied that the requirements of section 443(1) of the Act had been met, and the ballot was to be conducted by Fair Vote Services Pty Ltd, an approved agent under section 468A of the Act.

The primary legal issue before the FWC was whether the HSU had met the statutory requirements to conduct a protected action ballot. This involved determining if the union had genuinely attempted to reach an agreement with Forensicare and if all procedural requirements had been satisfied. The FWC had to ensure that the proposed ballot questions were appropriate and that the notification period was correctly observed. Additionally, the FWC needed to set a closing date for voting, which was determined to be 25 March 2025. The FWC also noted that it would subsequently conduct a compulsory conciliation conference under section 448A of the Act to facilitate negotiations between the parties.

The FWC found that the HSU had met all the necessary requirements to conduct the ballot. It accepted the declaration from the HSU's State Secretary, Paul Healey, confirming the union's genuine attempts to reach an agreement with Forensicare. With the parties having reached an agreement on the form of the draft order and Forensicare withdrawing its objections, the FWC was satisfied that the application could proceed. Consequently, the FWC issued an order allowing the ballot to proceed with Fair Vote as the authorised agent. The FWC also set the closing date for voting and noted that it would take steps to conduct a compulsory conciliation conference to encourage meaningful negotiations between the parties.

The FWC issued an order approving the protected action ballot and authorised Fair Vote Services Pty Ltd to conduct it. The order specified that voting was to close on 25 March 2025, establishing the ballot period. Additionally, the FWC indicated it would issue directions for a compulsory conciliation conference under section 448A of the Act to ensure the parties engaged in meaningful negotiations.

Health Services Union v Victorian Institute of Forensic Mental Health Trading as Forensicare

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established