The Australian Workers' Union v Bundaberg Friendly Society Medical Institute Limited T/A Friendly Society Private Hospital

[2023] FWC 3326

[2023] FWC 3326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Bundaberg Friendly Society Medical Institute Limited T/A Friendly Society Private Hospital

(B2023/1364)

COMMISSIONER CRAWFORD SYDNEY, 14 DECEMBER 2023

Proposed protected action ballot of employees of Bundaberg Friendly Society Medical Institute Limited

1. This is an application by The Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Bundaberg Friendly Society Medical Institute Limited T/A Friendly Society Private Hospital (Friendly Society Private Hospital or Employer). The AWU also filed a Form F34B declaration by Bronson Thomas (Organiser) and a draft order.

1. On 13 December 2023, the Commission was advised that the Friendly Society Private Hospital objects to the Application and it provided a letter outlining its grounds of opposition. The letter raised the following issues:

a.The Employer is a large regional hospital that provides critical health services to the public. The relevant employees provide vital support services for the hospital.

b.The taking of protected action will result in risks to the life, safety, and welfare of patients. Patients will need to be transferred to Brisbane for surgery and other treatment.

c.The AWU’s proposed undertaking concerning employees performing work during emergencies is not workable. Any type of industrial action could generate safety risks.

d.The Employer seeks a longer notice and voting period to account for the Christmas break. Any order should specify that no industrial action will be taken that will endanger, either directly or indirectly, the health, safety or welfare of patients or co-workers. A longer notice period is justified so arrangements can be made to transfer patients when required.   

1. Given the Employer’s opposition, I listed the application for hearing via video on 14 December 2023. The AWU was represented by David Marr (Industrial Advocate) and I granted permission for the Employer to be represented by Michal Waters from MRH Lawyers. I was satisfied this would enable the matter to be dealt with more efficiently.  

1. Mr Thomas was not required for cross-examination at the hearing and Mr Waters clarified that the Employer accepted the AWU has been, and is, genuinely trying to reach agreement for the purposes of s.443(1)(b) of the FW Act. On the basis of the material before me, including the declaration of Mr Thomas on behalf of the AWU, setting out the steps taken by the AWU in bargaining with the Employer, I am satisfied that the AWU has been, and is, genuinely trying to reach agreement with the Employer. I am also satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

1. During the hearing I heard from Mr Waters regarding whether I should make any form of protected action ballot order. Mr Waters reiterated the Employer’s submissions concerning the nature of its operations as a hospital and the safety risk associated with any type of industrial action. I indicated I had decided to make an order. I referred to there being various other examples of orders being made in relation to hospitals and that I did not accept as a general proposition that the right of employees to take protected industrial action should be entirely negated because of the critical services provided by a hospital. I indicated the Employer would have the ability to make an application pursuant to s.424 of the FW Act if it considers any industrial action notified by the AWU will threaten to endanger the life, personal safety or health, or the welfare, of the population or a part of it.

1. I then referred to the undertaking concerning emergency work proposed in Mr Thomas’ declaration and the alternative wording proposed by the Employer in its letter dated 13 December 2023. Mr Marr confirmed that the AWU did not oppose an undertaking being included in the order and I indicated that was my preference so that employees are aware of the undertaking when they vote. I provided the following wording for consideration by the parties:

“Undertaking

The proposed industrial action will be subject always to AWU members being available to perform work in genuine emergencies where there is a risk to health or safety.”

1. The AWU consented to the inclusion of this undertaking in the order. The Employer objected on the basis the undertaking was not sufficiently clear and would be difficult to implement. I decided I would include the undertaking in the order. Although it is not perfect, it will ensure employees are aware they have to respond to emergencies during periods of industrial action. I consider the wording proposed by the Employer could have been used to prevent any type of action, which would defeat the purpose of the order and deny the employees the ability to take protected industrial action.

1. The Employer requested an extended notice period of seven working days pursuant to s.443(5) of the FW Act, relying on the nature of the Employer’s operations and the potential need to arrange the transfer of patients to Brisbane. The AWU opposed this period but indicated it would consent to the notice period being extended to five working days. The Employer then indicated it was satisfied with this period. Given the agreement between the parties and the Employer’s submissions concerning the critical health services it provides to the public, I was satisfied there are exceptional circumstances warranting an extension of the notice period to five working days in accordance with s.443(5) of the FW Act.

1. The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 31 January 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An order has been separately issued in PR769354.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot. The Applicant initially sought the ballot close date as 20 working days, which has been extended to meet the requirements of the AEC as advised in earlier correspondence from the Commission.

Printed by authority of the Commonwealth Government Printer

<PR769353>