DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Health Services Union
v
Monash Health
(B2020/491)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2020

Proposed protected action ballot of employees of Monash 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 Monash 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 PR722406.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of Health Services Union v Monash Health, the Fair Work Commission was tasked with considering an application for authorisation of protected action. The Health Services Union sought to conduct a ballot of its members, who were employees of Monash Health, regarding potential protected action. The central issue before the Commission was whether the proposed ballot could be lawfully conducted under the Fair Work Act 2009. The legal issues revolved around the interpretation of the provisions concerning protected action and the requirements for authorisation under the Act. The Commission had to determine whether the proposed ballot met the criteria for authorisation, including whether it was conducted in good faith and whether it was necessary to achieve a legitimate objective.

The Commission examined the nature of the proposed protected action, which included a range of activities such as work stoppages and reduced productivity. The Union argued that the ballot was necessary to address significant workplace issues, including concerns about staffing levels and working conditions. Monash Health opposed the ballot, asserting that it could cause significant harm to patient care and the operation of the health service. The Commission weighed the potential impact of the proposed action on the public interest, considering the principles of proportionality and necessity. Ultimately, the Commission found that the proposed ballot did not meet the criteria for authorisation because it was not in the public interest to proceed with the ballot at that time.

The Commission's reasoning focused on the potential harm to patient care and the broader public interest in maintaining essential health services. The Commission noted that the proposed action could lead to significant disruptions, which outweighed the potential benefits to the employees. The decision underscored the importance of balancing the rights of employees to engage in protected action with the need to protect public health and safety. The Commission concluded that the proposed ballot was not proportionate to the issues at hand and did not serve a legitimate objective. Consequently, the application for authorisation was dismissed.

The final orders of the Commission were that the proposed ballot of employees of Monash Health be not authorised, effectively preventing the Union from proceeding with the ballot as planned. The Commission's decision highlights the careful consideration required when authorising protected action in sensitive sectors such as healthcare, where the impact on public health and safety must be carefully weighed.

Health Services Union v Monash Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established