The Hobart Clinic Association Limited t/a The Hobart Clinic v Health Services Union – INDUSTRIAL ACTION – suspension of protected industrial action – endangering life – s.424 Fair Work Act 2009 – reasons for decision published after order suspending industrial action issued – applicant operates mental health inpatient facility – facility treats patients with range of mental health illnesses and symptoms including self-harm and suicidal ideation – parties bargaining for enterprise agreement covering nurses at facility – protected action ballot order issued by Commission in December 2023 – ballot authorised protected industrial action including ‘an alteration to how members would ordinarily perform work by speaking with patients, the public and the media about industrial action, including giving them union materials’ – applicant sought order for suspension or termination of protected action – contended proposed action threatened physical and mental state of patients at risk of material detriment and/or hinder improvement in patient’s mental state – respondent contended power under Act to suspend protected industrial action intended for use in exceptional circumstances and where significant harm is being caused by action – further contended threat to an individual’s health and safety must be direct and imminent, rather than speculative – Commission observed main contention between parties was whether action would threaten to endanger life, personal safety, health or welfare of population or part of it (s.424(1)(c)) – further observed if found that proposed action puts a person’s physical or mental state at risk of material detriment that may constitute conduct that endangers personal health or safety – no requirement to find exceptional circumstances exist or that significant harm is being caused [Victorian Hospitals’ Industrial Association v ANF, NTEU v Monash] – Commission held HSU members speaking with patients about industrial action, without limitation, would put patients’ physical or mental state at risk of material detriment – agreed with applicant exacerbation of serious medical conditions already in hospital amounted to endangering health or welfare of those patients – requirements of ss.424(1)(b) and (c) met – Commission found insufficient evidence to support risk to patients if HSU members spoke to public and media – also insufficient evidence to support risk to patients if HSU members wore union clothing, badges and other campaign items during protected industrial action – as ss.424(1)(b) and (c) requirements met, whether to suspend or terminate action considered – Commission noted concerns raised by applicant could be addressed by HSU contemplating industrial action not involving speaking to patients about the action – held action would be suspended rather than terminated – Commission accepted HSU submissions that if suspension ordered the length of suspension ought be short as issues could be resolved quickly – held suspension would take effect 5 January 2024 and cease 11:59pm 22 January 2024 – order issued suspending industrial action – observed after order issued any other industrial action notified by HSU ceased to be protected (s.413(7)) during period concluding 11:59pm 22 January 2024. B2024/6 [2024] FWC 146 – Wright DP – Sydney – 17 January 2024
