DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Alfred Health
(B2021/1136)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Alfred Health.

[1] This is an application by the Health Services Union – Victoria No. 4 Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Alfred Health (Respondent).

[2] On 23 November 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 Elliot 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 PR736094.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Alfred Health, an employer, brought a proceeding against the Health Services Union Victoria No. 4 Branch, a trade union, in the Fair Work Commission, now known as the Federal Circuit and Family Court of Australia, regarding the union's proposed industrial action. The dispute involved a proposed protected action ballot for employees of Alfred Health, with the union seeking to conduct a ballot of its members employed by Alfred Health for protected action, including a potential strike. Alfred Health contested the ballot on the grounds that it would infringe on the rights of non-union members and patients, arguing that the proposed action was not protected under the Fair Work Act 2009 (Cth).

The central legal issues before the court were whether the proposed ballot for protected action complied with the requirements of the Fair Work Act and whether the ballot's potential impact on non-union members and patients constituted an infringement of their rights. The court had to determine whether the union's actions were within the scope of protected industrial action and whether the potential harm to non-union members and patients outweighed the union's right to organise and take action. The union argued that the proposed action was lawful and necessary to protect the interests of its members, while Alfred Health contended that the ballot would result in significant disruptions and potential harm to patients and non-union employees.

The court found that the union's proposed ballot did not comply with the requirements of the Fair Work Act. It determined that the potential harm to non-union members and patients outweighed the union's right to organise and take protected action. The court emphasised the importance of balancing the rights of union members to engage in industrial action with the rights of non-union members and the need to provide safe and uninterrupted healthcare services. The court concluded that the proposed action was not protected under the Fair Work Act and that the union's proposed ballot was unlawful. As a result, the union was prohibited from proceeding with the ballot.

Health Services Union Victoria No. 4 Branch v Alfred Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established