DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
Monash Health
(B2021/1145)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of Monash 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 Monash 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 PR736076.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union Victoria No. 4 Branch, acting on behalf of its members employed by Monash Health, sought to conduct a ballot for protected industrial action. The union aimed to ascertain the employees' support for potential industrial action against Monash Health. The dispute came before the Fair Work Commission (FWC), the administrative body responsible for resolving workplace disputes in Australia. The central issue before the FWC was whether the proposed ballot was a lawful exercise of the employees' right to engage in protected industrial action under the Fair Work Act 2009 (Cth). Specifically, the FWC had to determine whether the ballot complied with the procedural requirements set forth in the Act and whether it was necessary for the protection of the employees' rights or interests.

The FWC examined the union's application for authorisation to conduct the ballot, considering the specific provisions of the Fair Work Act. The union argued that the ballot was necessary to ascertain the employees' support for potential action, including protected action, which is a lawful right under the Act. Monash Health, on the other hand, contended that the ballot was not necessary and that it would cause significant disruption to the provision of healthcare services. The FWC assessed the arguments and evidence presented by both parties, focusing on whether the ballot was a proportionate and reasonable means to achieve the union's objectives. After careful deliberation, the FWC concluded that the proposed ballot did not meet the criteria for authorisation as it was not a proportionate and reasonable means to ascertain employee support for protected action.

The FWC found that the ballot was not necessary for the protection of the employees' rights or interests and that it would cause undue disruption to the healthcare services provided by Monash Health. Consequently, the FWC rejected the union's application for authorisation of the proposed ballot. The decision was grounded in the need to balance the employees' right to engage in protected industrial action with the broader public interest in maintaining essential services. The FWC's reasoning highlighted the importance of proportionality and reasonableness in the exercise of industrial action rights. The final orders of the FWC were that the proposed ballot of Monash Health employees by the Health Services Union Victoria No. 4 Branch was not authorised, and the union was directed to refrain from conducting the ballot.

Health Services Union Victoria No. 4 Branch 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