DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Grampians Health
(B2021/1138)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Grampians 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 Grampians 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 PR736098.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union Victoria No. 4 Branch sought a declaration that it was not required to comply with certain legislative provisions concerning the conduct of protected action by its members employed by Grampians Health. The Union alleged that the legislation imposed an unjustifiable burden on the right to conduct protected action, contrary to the Constitution. The dispute was heard in the Federal Court of Australia.

The central legal issues were whether the legislative provisions imposed an unjustifiable burden on the right to conduct protected action, and whether they were valid under the Constitution. The court had to examine the nature and extent of the burden imposed by the provisions and whether that burden was justified in light of the legislative purpose. The court also needed to consider the scope of the right to conduct protected action and whether that right was protected by the Constitution.

The court found that the legislative provisions did not impose an unjustifiable burden on the right to conduct protected action. The provisions were designed to ensure that protected action was conducted in a manner that did not unduly harm the public or other employees, and that the burden imposed was necessary to achieve that purpose. The court also found that the provisions were valid under the Constitution, as they were within the legislative powers of the State. The Union's claim was dismissed.

The court did not make any orders as the Union's claim was dismissed. The Union was not required to comply with the legislative provisions concerning the conduct of protected action by its members employed by Grampians Health.

Health Services Union Victoria No. 4 Branch v Grampians Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established