Health Services Union v Western Health

[2022] FWC 439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Western Health

(B2022/134)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 FEBRUARY 2022

Proposed protected action ballot of employees of Western Health.

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 Western Health (Respondent).

On 25 February 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Craig McGregor 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.

An order has been separately issued in PR738856.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) lodged an application with the Fair Work Commission (FWC) seeking a protected action ballot order in relation to certain employees of Western Health (WH). The application was made under section 437 of the Fair Work Act 2009 (FWA) and was opposed by WH. However, WH later withdrew its opposition, and the Deputy President Clancy decided to determine the matter on the papers without holding a hearing. The HSU's application was based on the assertion that it had been genuinely attempting to reach an agreement with WH, and that there was a notification time in relation to the proposed agreement.

The legal issues before the Deputy President were whether the HSU had met the requirements set out in section 443(1) of the FWA and whether there was a notification time in relation to the proposed agreement. The HSU argued that it had met the requirements in section 443(1) of the FWA and that there was a notification time in relation to the proposed agreement. WH, on the other hand, did not oppose the application and did not provide any argument against the HSU's claims.

The Deputy President determined that the HSU had met the requirements set out in section 443(1) of the FWA and that there was a notification time in relation to the proposed agreement. The Deputy President relied on the declaration of Mr Craig McGregor of the HSU, which outlined the steps taken by the HSU in bargaining with WH and that it had been, and was, genuinely trying to reach an agreement with WH. The Deputy President also noted that WH did not oppose the application and did not provide any argument against the HSU's claims.

The Deputy President issued an order in PR738856, granting the HSU's application for a protected action ballot order in relation to certain employees of WH. The order allows the HSU to conduct a protected action ballot among the employees in question, which may include a strike or other form of industrial action. The Deputy President did not make any further orders in relation to the dispute between the HSU and WH.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established