DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
The Royal Children’s Hospital
(B2021/1149)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of The Royal Children’s 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 The Royal Children’s 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 PR736087.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Royal Children’s Hospital sought a declaration from the court that a proposed ballot of its employees by the Health Services Union Victoria No. 4 Branch for protected action would be unlawful. The dispute arose from the union's intention to conduct a protected action ballot among the hospital's employees, which the hospital argued would be unlawful under the relevant legislation. The court was tasked with determining the legality of the union's proposed ballot and whether it complied with the provisions of the Health Services Act 1997 (Vic). The primary legal issue was whether the union's proposed ballot for protected action was compliant with the legislative framework, specifically whether the ballot was reasonably required to resolve an industrial dispute within the meaning of the Act.

The court considered the nature of the proposed protected action and the legislative requirements for such actions. It examined whether the ballot was reasonably required to resolve an industrial dispute, as stipulated by the Act. The court noted that the Act required protected action to be reasonably required to resolve an industrial dispute and that the decision to conduct the ballot must be made in good faith and for a proper purpose. The union argued that the ballot was necessary to resolve issues related to staffing, working conditions, and other employment terms and conditions. However, the court found that the union had not demonstrated that the proposed ballot was reasonably required to resolve an industrial dispute within the meaning of the Act. The court concluded that the union's proposed ballot did not meet the legislative criteria and was, therefore, unlawful.

Consequently, the court granted the hospital's application for a declaration that the proposed ballot for protected action by the union would be unlawful. The court's decision effectively prohibited the union from proceeding with the ballot as proposed. The final orders of the court included a declaration that the union's proposed ballot for protected action was unlawful and an injunction preventing the union from proceeding with the ballot. This ruling reinforced the importance of adhering to legislative requirements when organising industrial action and highlighted the need for unions to ensure that their actions are reasonably required to resolve an industrial dispute.

Health Services Union Victoria No. 4 Branch 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