DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Mildura Base Hospital Public Hospital T/A Mildura Base Hospital
(B2021/643)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 AUGUST 2021

Proposed protected action ballot of employees of Mildura Base Hospital Public Hospital.

[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 Mildura Base Hospital Public Hospital T/A Mildura Base Hospital (Respondent).

[2] On 9 August 2021, 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 Paul 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 PR732617.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case are the Health Services Union and the Mildura Base Hospital Public Hospital. The dispute revolves around a proposed protected action ballot of the employees of Mildura Base Hospital. This matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal. The Union sought approval to conduct a ballot among its members who are employed by the Hospital, seeking to engage in protected industrial action. The Hospital opposed the ballot, citing concerns over patient safety and operational impacts.

The legal issues before the Commission centred on whether the proposed industrial action would constitute protected action under the Fair Work Act 2009, and whether the ballot itself was necessary and reasonable. The Commission had to balance the rights of the employees to engage in protected industrial action with the potential impact on the hospital's operations and patient safety. It was also necessary to consider the procedural fairness in conducting the ballot.

In its decision, the Fair Work Commission determined that the proposed industrial action was protected action under the Fair Work Act, as it was a strike or lockout in the meaning of the Act. The Commission found that the proposed action was a genuine industrial action for a better outcome for the employees. The Commission also concluded that the procedural requirements for conducting the ballot were met and that the Hospital had not demonstrated that the proposed industrial action would compromise patient safety to an unacceptable degree. The Commission approved the Union’s application, allowing the ballot to proceed.

The final orders of the Commission were that the Union could conduct the ballot among its members employed by the Hospital, and that the Hospital must facilitate the conduct of the ballot. The Commission emphasised that the Hospital must take all reasonable steps to ensure that the conduct of the ballot does not adversely affect patient safety or the delivery of healthcare services.

Health Services Union v Mildura Base Hospital Public Hospital T/A Mildura Base Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established