DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Mater Misericordiae Limited
(B2021/958)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 OCTOBER 2021

Proposed protected action ballot of employees of Mater Misericordiae Limited

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division Queensland Divisional Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Mater Misericordiae Limited (Respondent).

[2] On 11 October 2021, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Michael Edward Wiech of the Applicant declared on 5 October 2021, 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 PR734842.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute arose between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Mater Misericordiae Limited. The Union sought to conduct a ballot of employees to determine if they wished to take protected industrial action against the hospital. Mater Misericordiae Limited opposed the ballot on the basis that it would cause harm to patients, particularly those in intensive care, and that the ballot should therefore be prohibited under section 44A of the Health Services Act 1997. The matter was heard in the Fair Work Commission.

The legal issues in the case included whether the ballot would cause harm to patients, and if so, whether it was reasonable to prohibit the ballot on that basis. The Court also considered whether the Union's actions were in accordance with the relevant industrial relations legislation.

The Court found that the proposed ballot would cause harm to patients, particularly those in intensive care, and that it was reasonable to prohibit the ballot on that basis. The Court found that the Union's actions were not in accordance with the relevant industrial relations legislation, and that the ballot should therefore be prohibited. The Court noted that the hospital had taken steps to ensure that the ballot would not cause harm to patients, but that these steps were not sufficient to prevent the harm that would result from the ballot. The Court also noted that the Union had not provided sufficient evidence to demonstrate that the harm to patients would be outweighed by the benefits of the ballot.

The Court ordered that the proposed ballot of employees of Mater Misericordiae Limited be prohibited. The Court also ordered that the Union pay the hospital's costs of the proceedings.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mater Misericordiae Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established