DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union – Victoria No. 4 Branch
v
The Royal Victorian Eye and Ear Hospital
(B2021/1151)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2021

Proposed protected action ballot of employees of The Royal Victorian Eye and Ear 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 Victorian Eye and Ear 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 PR736091.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union Victoria No. 4 Branch initiated legal action against The Royal Victorian Eye and Ear Hospital, seeking to enforce a proposed protected action ballot of employees. The dispute centred on the hospital's refusal to permit the union to conduct a vote among its staff regarding potential protected actions. The Fair Work Commission heard the case, tasked with resolving the conflict between the union's right to organise and the hospital's operational prerogatives.

The central legal issues involved interpreting the provisions of the Fair Work Act 2009, particularly those concerning protected industrial action and the procedural requirements for conducting a ballot. The Commission had to determine whether the hospital's refusal to allow the ballot was justified under the Act and if the union had fulfilled all necessary prerequisites to conduct the ballot. The interpretation of the terms 'good faith' and 'protected action' was pivotal to the decision.

In its ruling, the Commission found that the hospital's refusal to permit the ballot was not justified under the Fair Work Act. The union had complied with all procedural requirements, and the hospital's concerns about potential operational disruptions did not outweigh the union's right to organise and conduct a ballot. The Commission ordered the hospital to allow the union to proceed with the ballot, emphasising the importance of balancing workplace rights with operational needs.

The Commission mandated that The Royal Victorian Eye and Ear Hospital facilitate the union's proposed ballot among its employees, highlighting the necessity of adhering to legal provisions that protect industrial action rights. The decision underscored the importance of good faith in labour relations and the procedural integrity required in organising protected actions.

Health Services Union Victoria No. 4 Branch v The Royal Victorian Eye and Ear Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established