State of Victoria Department of Human Services v Health Services Union

[2012] FWA 8356

[2012] FWA 8356

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.424—Industrial action

State of Victoria - Department of Human Services
v
Health Services Union
(B2012/1630)

COMMISSIONER GREGORY MELBOURNE, 28 SEPTEMBER 2012

Termination of protected industrial action.

[1] On 24 September 2012 the State of Victoria - Department of Human Services (DHS) made application pursuant to s.424(1) of the Fair Work Act 2009 (the Act) for an order to suspend protected industrial action being taken by the Health Services Union - Victorian No. 2 Branch (HACSU) and its members. A suspension of two months is sought.

[2] HACSU is the bargaining representative for members employed by the DHS who are intended to be subject to a proposed enterprise agreement. HACSU provided DHS with a log of claims in regard to that agreement on 2 April 2012. There have been approximately 20 meetings to progress those negotiations since that time.

[3] A Protected Action Ballot Order was made on 6 July 2012 and on 1 August the Australian Electoral Commission (AEC) declared a valid majority of voters authorised each of the types of proposed industrial action. On 7 August 2012 HACSU served a Notice of Intention to take Protected Action commencing on 13 August 2012. However, DHS lodged a s.418 application and after proceedings before Fair Work Australia on 14 August HACSU subsequently issued another Notice of Intention indicating industrial action would commence on 18 August 2012. Protected industrial action has been occurring since that time.

[4] The s.424 application is concerned with what are described as “Ban 10” and “Ban 11” of the protected industrial action. They are expressed in the following terms:

“Indefinite bans on completion of email alerts and updates in relation to Category 1 incidents, and updates in relation to Behaviour Support Plans (BSP’s) and the Restrictive Intervention Data System (RIDS) - (Ban 10).

Indefinite ban on changes to work locations unless employee initiated - (Ban 11).”

[5] The application was heard on 25 and 26 September 2012. The parties presented witnesses and other evidence in relation to the protected industrial action and its impact. I indicated at the conclusion of the proceedings I intended to reserve my decision to consider what had been put, however, the application would be determined as soon as possible. Sub-section 424(3) of the Act requires Fair Work Australia, as far as practicable, to determine an application under s.424 within five days after it is made.

[6] I now accordingly issue the following decision. Reasons for decision will be published as soon as possible.

[7] The application is made on the basis protected industrial action is threatening to endanger the personal safety or health, or the welfare, of part of the population, namely the residents and staff and others engaged in delivering disability support services at various facilities throughout Victoria operated by the Department. If I am satisfied those circumstances exist s.424(1) provides I must make an order suspending or terminating the protected industrial action.

[8] The application is opposed by HACSU.

[9] I have considered all the evidence and submissions put in the proceedings. I am not satisfied the existing protected industrial action by HACSU and its members is threatening to endanger the personal safety or health, or the welfare, of that part of the population identified in the application.

[10] The application is accordingly dismissed. As indicated, reasons for this decision will be published as soon as possible.

COMMISSIONER

Appearances:

F. Parry of Senior Counsel with R. Dalton of Counsel on behalf of State of Victoria - Department of Human Services.

R. Reitano of Counselfor Health Services Union.

Hearing details:

2012.

Melbourne:

September 26 and 27.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR529657>