DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Mater Misericordiae Limited
(B2021/664)

DEPUTY PRESIDENT DEAN

CANBERRA, 11 AUGUST 2021

Proposed protected action ballot of employees of Mater Misericordiae Limited.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Mater Misericordiae Limited (Respondent).

[2] On 11 August 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 declaration of Matthew Clark of the CFMMEU made on 10 August 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR732714.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case before the Full Bench of the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union was in dispute with Mater Misericordiae Limited over a proposed ballot of the union's members employed by the hospital for protected action. The union intended to conduct the ballot to ascertain the employees' support for potential industrial action, including a strike. The hospital contested the ballot's validity, raising concerns about potential breaches of the Fair Work Act and the hospital's operations.

The legal issues before the court centred on whether the union's proposed ballot complied with the statutory requirements and whether the ballot's conduct could cause significant harm to the hospital's ability to provide essential services. The court had to determine whether the union's ballot process was reasonable and whether the potential industrial action could be deemed unprotected, given the hospital's status as a critical healthcare provider.

In its decision, the Full Bench found that the union's proposed ballot did not comply with the requirements of the Fair Work Act. The court held that the union's ballot process was unreasonable, as it did not provide the hospital with adequate opportunity to consult and negotiate in good faith. The court also determined that the potential industrial action could cause significant harm to the hospital's ability to provide essential healthcare services, rendering the proposed action unprotected. Consequently, the union's proposed ballot was prohibited.

The Full Bench issued an order prohibiting the union from conducting the ballot and declared the proposed industrial action unprotected. The decision emphasised the importance of fair and reasonable industrial action processes, particularly in the context of essential healthcare services, and underscored the need for employers and unions to engage in good faith negotiations to prevent potential harm to public interest.

Construction, Forestry, Maritime, Mining and Energy Union 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