DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Melbourne Health
(B2021/1144)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Melbourne 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 Melbourne 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 PR736066.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Health Services Union Victoria No. 4 Branch versus Melbourne Health, the case arose from a proposed industrial action by the employees of Melbourne Health, which the Union intended to conduct by way of a ballot. The dispute centred on the validity and compliance of the proposed ballot with the relevant industrial legislation, specifically the Fair Work Act 2009. The Fair Work Commission heard the matter, tasked with determining whether the Union's proposed action was protected action under the Act and whether the ballot complied with the prescribed procedures.

The primary legal issues before the Commission involved whether the ballot proposed by the Union constituted protected action and if the process followed adhered to the statutory requirements outlined in the Fair Work Act. The Commission needed to assess the nature of the proposed industrial action and whether it fell within the scope of protected action as defined by the Act. Additionally, the Commission had to consider whether the Union had properly notified Melbourne Health of the ballot and whether the timing and manner of the ballot complied with the legislative framework.

In its decision, the Fair Work Commission found that the Union's proposed ballot was indeed protected action under the Fair Work Act. The Commission held that the Union's proposed action was related to the employees' terms and conditions of employment and thus qualified as protected action. However, the Commission also determined that the Union had not complied with certain procedural requirements of the Act, specifically in relation to the notification and timing of the ballot. The Commission ruled that while the proposed action itself was legitimate, the failure to follow the prescribed procedures rendered the ballot invalid. Consequently, the Union was required to recommence the ballot process in compliance with the statutory requirements.

The final orders of the Fair Work Commission mandated that the Union must conduct a new ballot in accordance with the Fair Work Act, ensuring that all procedural requirements, including proper notification and timing, are met. The Commission's decision underscored the importance of adhering to legislative procedures in conducting industrial action, while affirming the legitimacy of the Union's proposed action in principle.

Health Services Union Victoria No. 4 Branch v Melbourne Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established