Health Services Union v Yooralla

[2022] FWC 2111

[2022] FWC 2111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

v

Yooralla

(B2022/1189)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 AUGUST 2022

Proposed protected action ballot of employees of Yooralla

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 Yooralla (the Respondent).

1. On 8 August 2022, the Respondent advised my Associate that while it did not oppose the application it sought clarification of two forms of proposed protected industrial action and sought undertakings from the Respondent.  The Applicant provided a response that same day submitting that any concerns held by the Respondent could be more properly dealt with under s.424 of the Act.

1. My Associate sent a further email advising the parties that should they not advise my Chambers that they seek to be heard further by 10.00am on 9 August 2022, the application would be determined on the papers.  As no further advice has been received from the Applicant or the Respondent, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Craig McGregor of the Applicant, setting out the steps taken by the Applicant in bargaining and the assertion 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. I do not consider any of the matters the Respondent has raised are a barrier to the granting of the application and observe that if the concerns it has expressed materialise, it has various options available to it pursuant to s.424 of the Act. 

1. The Applicant also sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. The Respondent did not oppose this course. The person proposed in the application as the protected action ballot agent is Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd). I am satisfied that Mr Donaldson is a fit and proper person to conduct the ballot. I am also satisfied that he is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Donaldson has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore I appoint Mr Stephen Donaldson as the protected action ballot agent.

1. An order has been separately issued in PR744529.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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