DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Goulburn Valley Health
(B2021/1142)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Goulburn Valley 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 Goulburn Valley 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 PR736106.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union Victoria No. 4 Branch brought proceedings against Goulburn Valley Health, seeking a declaration that the union could lawfully conduct a protected action ballot of employees. The dispute centred on whether the union's proposed ballot complied with the requirements of the Health Services (Protected Actions) Act 2011 (Vic). The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the union's proposed ballot met the legislative criteria for a protected action ballot, specifically focusing on the definition of "protected action" under the Act and the procedural requirements that must be satisfied. The court had to assess whether the ballot notice given by the union was sufficient and whether the union had adhered to the prescribed processes. Furthermore, the court considered whether any procedural defects were fatal to the ballot or could be rectified.

In its decision, the court found that the union's ballot notice was insufficient as it did not comply with the requirements of the Act. The notice did not include all the prescribed particulars and did not provide the employees with the necessary information to make an informed decision. The court concluded that the union's failure to comply with the legislative requirements rendered the proposed ballot unlawful. The court's reasoning emphasised the importance of strict adherence to statutory provisions governing protected action ballots in the health sector.

The Supreme Court of Victoria declared that the union's proposed ballot was unlawful and could not proceed. The court's decision underscored the necessity for precise compliance with statutory requirements when conducting protected action ballots in the health sector.

Health Services Union Victoria No. 4 Branch v Goulburn Valley Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established