DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Western Health
(B2021/1135)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Western 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 Western 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 PR736083.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Health Services Union Victoria No. 4 Branch v Western Health came before the Fair Work Commission. The dispute involved the Union's proposed protected action ballot of Western Health employees, which the employer contested on the grounds of procedural fairness and compliance with the Fair Work Act 2009. The Union sought authorisation for the ballot, while Western Health opposed it, arguing that the ballot did not comply with procedural requirements under the Act.

The legal issues before the Commission included whether the Union had adequately followed the procedural steps required to call a ballot and whether the ballot notice provided to employees complied with the Act. Specifically, the Commission had to consider whether the ballot notice contained all necessary information, including details of the dispute, the intended action, and the consequences for employees and the employer. The Commission also had to determine whether the Union's actions were fair and reasonable, given the employer's concerns and submissions.

In its decision, the Commission found that the Union had failed to provide adequate information in the ballot notice, which did not include the reasons for the proposed action and the potential impact on patients. The Commission held that the notice was insufficient to enable employees to make an informed decision about participating in the ballot. Consequently, the Commission refused the Union's application for authorisation of the ballot. The employer's concerns regarding procedural fairness and compliance with the Act were upheld by the Commission, leading to the dismissal of the Union's application.

Health Services Union Victoria No. 4 Branch v Western Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established