DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Northern Health
(B2021/1146)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Northern 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 Northern 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 PR736078.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Health Services Union Victoria No. 4 Branch versus Northern Health, the dispute involved a proposed industrial action ballot of employees of Northern Health. The matter was brought before the Fair Work Commission, as it pertained to the interpretation and application of the Fair Work Act 2009. The Health Services Union Victoria No. 4 Branch sought to conduct a ballot of its members to gauge support for protected action, which Northern Health contested, claiming the ballot was not aligned with the requirements of the Act.

The central legal issue before the Commission was whether the proposed ballot complied with the procedural and substantive requirements set forth in the Fair Work Act. Specifically, the Commission had to determine if the ballot notice and materials provided to employees sufficiently disclosed the nature of the proposed action and the potential implications for both the employees and the employer. Additionally, the Commission assessed whether the proposed action fell within the scope of protected actions as defined by the Act.

The Commission found that the ballot notice did not adequately disclose the nature of the proposed action, thereby failing to meet the requirements of section 393 of the Act. Furthermore, the Commission ruled that the notice did not clearly outline the potential impact of the proposed action on both the employees and Northern Health, as required by section 394. Consequently, the proposed ballot was deemed to be non-compliant with the Act, and the Commission did not grant the authorisation for the ballot. As a result, the proposed industrial action could not proceed.

The Fair Work Commission ordered that the proposed protected action ballot of Northern Health employees by the Health Services Union Victoria No. 4 Branch was not authorised, and thus, could not be lawfully conducted.

Health Services Union Victoria No. 4 Branch v Northern Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established