DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
St Vincent’s Health
(B2021/1152)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of St Vincent's 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 St Vincent's 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 PR736093.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was asked to determine the validity of a proposed industrial action ballot by employees of St Vincent's Health, represented by the Health Services Union Victoria No. 4 Branch. The dispute centred around whether the ballot, intended to gauge employee support for protected action, complied with the requirements set out in the Fair Work Act 2009. St Vincent's Health, the respondent, challenged the ballot's legitimacy, arguing that it failed to meet statutory conditions for such actions.

The central legal issues before the court were whether the ballot complied with the procedural prerequisites for protected action and whether it was reasonably likely to achieve the union's objectives. The court had to consider the specific statutory requirements, including the necessity of a written notice to the employer, the inclusion of particular details in the ballot, and the reasonableness of the proposed action in terms of its potential impact and alignment with the union's objectives.

The court found that the ballot did not adequately specify the nature of the proposed action, which was critical for determining its reasonableness. It also highlighted deficiencies in the notification process and the lack of clarity in the ballot documents. Given these issues, the court ruled that the proposed ballot did not comply with the legislative requirements for protected action. Consequently, the court declared the ballot invalid and enjoined the union from proceeding with it. This decision underscored the importance of strict adherence to statutory provisions when organising industrial action to ensure fairness and transparency in the workplace.

Health Services Union Victoria No. 4 Branch v St Vincent's Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established