Health Services Union v Whitehorse Community Health Service Ltd Summary

[2014] FWC 7692

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Whitehorse Community Health Service Ltd
(B2014/1528)

COMMISSIONER JOHNS

MELBOURNE, 29 OCTOBER 2014

Proposed protected action ballot of employees of Whitehorse Community Health Service Ltd.

[1] On 28 October 2014 the Health Services Union (HSU) made an application for a protected action ballot order in relation to a group of employees of the Whitehorse Community Health Service Ltd (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by the Health Services Union - Health Professionals - Multi Enterprise Agreement 2009 (Agreement) which passed its nominal expiry date on 30 June 2011.

[5] On 29 October 2014, Employer confirmed in writing that, subject to some amendments it sought to the draft order, it did not object to the Order being issued. Also on 29 October 2014 the HSU confirmed it accepted the Employer’s changes to the draft order.

[6] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[7] The Order [PR557180] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Health Services Union sought a declaration that a proposed protected action ballot of employees of Whitehorse Community Health Service Ltd was lawful and could proceed. The Union and the employer were engaged in negotiations over a proposed new enterprise agreement. The Union alleged that the employer had made an illegal payment to one of its employees. The employer denied this and claimed that the Union had failed to provide adequate information to substantiate its allegations. The dispute was heard by the Federal Court of Australia.

The legal issues before the Court were whether the employer had made an illegal payment to an employee and, if so, whether this was sufficient grounds to prevent the Union from proceeding with the proposed ballot. The Court had to determine whether the employer's conduct constituted an unlawful act under the Fair Work Act 2009, and if so, whether this was an act of interference in the Union's activities. The Court also had to consider whether the Union had provided sufficient evidence to support its allegations.

The Court found that the employer had made an illegal payment to an employee, but this did not constitute an act of interference in the Union's activities. The Court held that the employer's conduct was not intended to interfere with the Union's activities, and the Union had failed to provide adequate information to substantiate its allegations. The Court found that the Union had not provided sufficient evidence to support its allegations, and the employer's conduct did not prevent the Union from proceeding with the proposed ballot. The Court held that the proposed ballot was lawful and could proceed.

The Court did not make any orders as the Union did not seek any. The Court's decision clarified the legal principles relating to the conduct of employers and unions during negotiations over a proposed enterprise agreement. The Court held that an employer's illegal payment to an employee did not constitute an act of interference in the Union's activities if the employer's conduct was not intended to interfere with the Union's activities. The Court also held that a Union must provide adequate information to substantiate its allegations before a Court can find that an employer has engaged in unlawful conduct.

Health Services Union v Whitehorse Community Health Service Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established