DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Austin Health
(B2021/1137)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Austin 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 Austin 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 PR736096.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a proposed industrial action ballot by the employees of Austin Health, organised by the Health Services Union Victoria No. 4 Branch. The hospital sought an order to prevent the ballot, claiming that it would negatively impact the health services provided to the community. The union argued that the ballot was necessary to advocate for better working conditions and remuneration.

The central legal issue for the Commission to decide was whether the proposed industrial action constituted protected action under the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot was a genuine step in good faith to facilitate a bargain between the employer and employees regarding workplace matters. Additionally, the court needed to assess whether the proposed action would cause significant harm to the community, which would render it unprotected under the Act.

In its decision, the Commission found that the proposed ballot was indeed a genuine step taken in good faith to facilitate a bargain on workplace issues. The Commission emphasised the importance of the right to organise and engage in protected industrial action as a fundamental aspect of the industrial relations system. The Commission also considered the potential impact of the industrial action on the community and concluded that while there would be some disruption, it would not be significant enough to override the right to organise. Consequently, the application by Austin Health to prevent the ballot was dismissed.

The Commission's final orders were that Austin Health was not to take any steps to prevent the proposed ballot of its employees, and the union was permitted to proceed with the ballot as planned.

Health Services Union Victoria No. 4 Branch v Austin Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established