DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Melbourne Health
(B2020/487)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of Melbourne 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 Melbourne 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 PR722396.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union initiated proceedings against Melbourne Health in the Fair Work Commission, seeking approval for a protected action ballot among its employees. The dispute centred around the terms of a proposed enterprise agreement which the Union aimed to implement through the ballot. Melbourne Health opposed the ballot, arguing that the proposed action would disrupt essential health services and thus contravene provisions of the Fair Work Act.

The primary legal issues before the Commission were whether the proposed industrial action was protected action under the Act, and whether it was permissible given the nature of the services provided by Melbourne Health. The Commission had to consider the public interest in maintaining uninterrupted essential services against the rights of employees to engage in protected action as provided for by the Act.

The Fair Work Commission held that the proposed industrial action was protected action, as it related to the employees' terms of employment or conditions of work. However, the Commission also found that the proposed action would significantly disrupt essential health services, which was not in the public interest. The Commission emphasised the critical nature of Melbourne Health's services and the potential harm to public health if the proposed action went ahead. Consequently, the Commission decided that the proposed industrial action was not permissible. The Union's application for approval of the ballot was dismissed.

Health Services Union v Melbourne Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established