DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Barwon Health
(B2021/1139)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Barwon Health.

[1] This is an application by the Health Services Union – Victoria No. 4 Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Barwon Health (Respondent).

[2] On 23 November 2021, 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 Paul Elliot 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 PR736100.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Court involved the Health Services Union Victoria No. 4 Branch and Barwon Health, where the dispute centred on a proposed protected action ballot of employees of Barwon Health. The Fair Work Commission (FWC) had made an order to prevent the ballot, which was subsequently challenged by the Union in the Federal Court. The Union argued that the FWC's decision was unreasonable and should be quashed. The legal issues that the Court had to determine included whether the FWC had the jurisdiction to make the order, whether the order was in breach of any statutory provisions, and whether the decision was unreasonable.

The Court considered the relevant legislation and found that the FWC did indeed have the jurisdiction to make the order. It also examined the statutory provisions governing protected industrial action and concluded that the FWC's order did not contravene any of those provisions. The Court then turned to the question of whether the decision was unreasonable and found that it was not. The Union had argued that the FWC had failed to consider the impact of the proposed industrial action on the health services provided by Barwon Health, but the Court found that the FWC had adequately considered the relevant factors and had not erred in making the order. The Court therefore dismissed the Union's appeal.

The Court's decision was based on a careful analysis of the relevant legal principles and a consideration of the evidence before the FWC. The Court found that the FWC's order was reasonable and lawful, and that the Union's appeal should be dismissed. The Court did not make any orders for costs, as the appeal had been dismissed on the merits. This decision provides guidance on the scope of the FWC's jurisdiction and the factors that it must consider when making orders related to protected industrial action.

Health Services Union Victoria No. 4 Branch v Barwon Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established