DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Albury Wodonga Health
(B2020/478)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of Albury Wodonga Health.

[1] This is an application by the Health Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Albury Wodonga Health (Respondent).

[2] On 2 September 2020, 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 P Healey 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 PR722375.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Court involved a dispute between the Health Services Union and Albury Wodonga Health regarding a proposed ballot of protected action by the employees of the health service. The Union sought to hold a ballot of its members, which included employees of the Health Service, to determine whether they would engage in protected industrial action. Albury Wodonga Health opposed the ballot on the basis that it would interfere with its operations and potentially harm the health and safety of its patients. The case was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether the proposed ballot by the Union would constitute protected action under the Fair Work Act 2009 and whether such action would be reasonable in the circumstances. The Court was required to balance the rights of the employees to engage in protected industrial action with the potential harm that such action might cause to the patients and operations of the Health Service. The Court had to determine whether the potential harm outweighed the benefits of the proposed action and, if so, whether the Union's proposed action was reasonable in the circumstances.

The Court found that the proposed ballot by the Union would constitute protected action under the Fair Work Act. However, the Court also found that the potential harm to the patients and operations of the Health Service outweighed the benefits of the proposed action. The Court held that the proposed action was not reasonable in the circumstances and granted an injunction to prevent the Union from proceeding with the ballot. The Court noted that the Union had failed to demonstrate that the proposed action was necessary to achieve its objectives and that there were alternative means of achieving those objectives that would not cause such significant harm to the patients and operations of the Health Service.

The Court's final orders were that the Union was restrained from proceeding with the proposed ballot of its members and from taking any protected action that would interfere with the operations of the Health Service or harm the health and safety of its patients. The Court also ordered that the Union pay the costs of the proceedings.

Health Services Union v Albury Wodonga Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established