DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Peninsula Health
(B2021/1147)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Peninsula 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 Peninsula 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 PR736080.

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 v Peninsula Health, the dispute arose from a proposed industrial action ballot conducted by the Health Services Union Victoria No. 4 Branch among employees of Peninsula Health. The union aimed to organise a vote to determine whether the employees should engage in protected action, potentially leading to a strike. Peninsula Health challenged the ballot, leading to proceedings in the Federal Court of Australia.

The central legal issues revolved around the interpretation and application of the Fair Work Act 2009, specifically sections that govern the conduct of industrial action ballots. The court had to determine whether the union's proposed ballot complied with the statutory requirements and whether Peninsula Health had a legitimate basis to seek an injunction to prevent the ballot. Additionally, the court considered whether the union's actions were within the bounds of fair and reasonable industrial action as outlined in the legislation.

The Federal Court held that the union's proposed ballot did not meet the statutory requirements for a protected action ballot as it failed to provide the necessary details to Peninsula Health. The court found that the union's failure to include specific details about the proposed action rendered the ballot defective. Consequently, the union's actions did not comply with the Fair Work Act, and the court granted Peninsula Health's application for an injunction to prevent the ballot from proceeding. The union's appeal was subsequently dismissed, affirming the lower court's decision.

The final orders of the court included an injunction preventing the union from conducting the proposed ballot and a declaration that the ballot was invalid due to its non-compliance with the statutory requirements. The union was also required to bear the costs of the proceedings. This decision underscores the importance of adhering to the specific procedural requirements when organising industrial action ballots in Australia.

Health Services Union Victoria No. 4 Branch v Peninsula Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established