DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Latrobe Regional Hospital
(B2021/1143)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Latrobe Regional Hospital.

[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 Latrobe Regional Hospital (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 PR 736109.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union Victoria No. 4 Branch brought a claim against Latrobe Regional Hospital regarding a proposed protected action ballot of its employees. The union sought an order for the ballot to proceed, while the hospital argued that the ballot should not proceed due to potential health risks posed by the proposed action. The Fair Work Commission was the forum for the dispute. The central legal issue before the Commission was whether the potential health risks associated with the proposed protected action constituted an emergency that would justify preventing the ballot from proceeding. This required the Commission to weigh the rights of the employees to engage in protected action against the hospital's obligation to ensure patient safety.

The Commission began by examining the nature and scope of the proposed protected action, which included a range of measures that could potentially affect patient care. It then considered the evidence regarding the potential health risks posed by the action, including expert medical opinions and submissions from both parties. The Commission found that while the proposed action could indeed result in disruptions to patient care, it did not rise to the level of an emergency that would justify preventing the ballot. The Commission emphasised the importance of allowing employees to exercise their rights to protected action, subject to the reasonable requirements of maintaining patient safety. Consequently, the Commission ordered that the ballot proceed, subject to certain conditions designed to mitigate the potential risks to patients.

The Commission's decision was grounded in the principles of balancing the rights of employees with the legitimate interests of the employer in maintaining safe and effective healthcare services. It also highlighted the importance of the procedural safeguards in place to manage the potential risks associated with industrial action in the healthcare sector. The Commission concluded that the proposed action did not present an immediate and significant threat to patient safety that would warrant preventing the ballot. The Commission's order allowed the employees to proceed with the ballot, subject to the specified conditions to ensure that any disruption to patient care was minimised.

Health Services Union Victoria No. 4 Branch v Latrobe Regional Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established