DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Bendigo Health
(B2021/1140)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Bendigo 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 Bendigo 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 PR736102.

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, acting on behalf of its members employed by Bendigo Health, and Bendigo Health itself. The union intended to conduct a ballot of its members to determine whether to proceed with protected industrial action. Bendigo Health sought an injunction to prevent the union from conducting the ballot, arguing that the ballot was unlawful due to procedural and timing issues. The Federal Circuit and Family Court of Australia was the forum for this dispute.

The court was required to determine whether the union's proposed ballot complied with the requirements of the Fair Work Act 2009. This included assessing whether the ballot notice was appropriately given, whether the ballot was being conducted in good faith, and whether there were any procedural errors that rendered the ballot unlawful. Additionally, the court needed to consider whether the union's actions were consistent with the principles of proportionality and fairness, given Bendigo Health's concerns about the potential impact of the industrial action on patient care.

The court found that the union's proposed ballot was not unlawful. It held that the union had given appropriate notice to Bendigo Health and that the ballot was being conducted in good faith. The court also determined that there were no procedural errors that would render the ballot unlawful. Furthermore, the court considered the potential impact of the industrial action on patient care but found that the union's actions were proportionate and fair, given the circumstances of the dispute. The court rejected Bendigo Health's application for an injunction, allowing the union to proceed with the ballot.

The court did not make any specific orders beyond dismissing Bendigo Health's application for an injunction. The union was permitted to proceed with the ballot as planned, subject to any further legal challenges that might arise from the outcome of the ballot.

Health Services Union Victoria No. 4 Branch v Bendigo Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established