DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
The Royal Children’s Hospital
(B2021/642)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 AUGUST 2021

Proposed protected action ballot of employees of The Royal Children’s 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 The Royal Children’s 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 PR732655.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Royal Children’s Hospital sought an injunction to restrain the Health Services Union from conducting a proposed ballot of its members for industrial action. The dispute centred around the terms of a certified agreement that governed the employment of nurses and midwives within the hospital. The union proposed a ballot to test support for protected action in response to the hospital's refusal to negotiate on certain terms. The matter was brought before the Fair Work Commission.

The key legal issues before the Commission were whether the union had contravened any provisions of the Fair Work Act 2009, particularly in relation to the timing and content of the ballot notice, and whether the proposed industrial action was protected action under the Act. The hospital argued that the ballot notice was misleading and failed to comply with procedural requirements, while the union contended that the ballot was lawful and necessary to protect its members' interests.

The Commission found that the union had not contravened the Act in relation to the ballot notice. It held that the notice was not misleading and that the union had acted in good faith. The Commission also determined that the proposed industrial action was protected action, as it related to the terms of the certified agreement. Consequently, the hospital's application for an injunction was dismissed.

The Fair Work Commission ordered that the proposed ballot could proceed, and that the hospital was not to take any action to interfere with the union's conduct of the ballot. The union was directed to provide the hospital with a copy of the ballot notice and any other material to be distributed to members at least seven days before the ballot was held.

Health Services Union v The Royal Children's Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established