s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees covered by the ACT Public Sector Health Professional Enterprise Agreement 2023-2026

[1] This is an application by the Health Services Union (HSU or 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 Australian Capital Territory (ACT Health or Employer).

• [2] I note that the Community and Public Sector Union (CPSU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement. This application relates to negotiations to replace the ACT Public Sector Health Professional Enterprise Agreement 2023-2026.

[3] On 13 April 2026, the Commission was advised that the Employer did not object to the application if amended in certain respects. The parties reached a consent position on there being an extended minimum notice period for the taking of industrial action of five (5) working days for specific proposed ballot questions discussed below. In effect, the parties have accepted that there were relevant exceptional circumstances and also agreed to minor drafting amendments to the Applicant's draft order relating to the conduct of the ballot and the proposed ballot questions.

[4] I observe, for completeness, that the Respondent wished to note that engaging in the proposed industrial action may have interactions with the professional duties and obligations under the Australian Health Practitioner Regulation Agency or any other professional standards agencies. The Respondent further raised its concerns relating to specific questions which it asserts, would pose a significant risk to safety of patients, and wished to reserve its right to raise those concerns at a later date.

[5] In the circumstances, I have amended the application to largely reflect the consent position and decided to determine the matter on the papers without holding a hearing.

[6] On the basis of the material before me, including the declaration of Darren Brown, Organiser, setting out the steps taken by the HSU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with ACT Health, I am 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.

[7] The ballot is to be conducted by True Vote Pty Ltd (True Vote). True Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

[8] With respect to the proposal to introduce the word "in writing" to order 14.2, I have not adopted what I consider to be an unnecessary and unhelpful amendment to the standard clause. The agent must by necessity always provide a written report and the use of that additional term in a single clause might create uncertainty about the many other requirements set out in the order, which must also be undertaken in writing.

[9] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when some employees take certain forms of industrial action set out in clause 5 of the Order made by the Commission. Pursuant to s.443(5), the period of written notice is extended to five (5) working days in respect of industrial action arising from questions 16 and 17 of clause 5 of the Order that is engaged or proposed to be engaged in by medical imaging health professionals (Sonographers, Radiographers, Nuclear Medicine Technicians) and/or Cardiac Perfusionists. The default period of three working days will apply to the remaining forms of action arising from the ballot question.

• [10] 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 8 May 2026.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[11] An Order has been separately issued in PR798611.

[12] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives 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.

[2] This is, in effect, 17 working days from the making of the Order and was the period sought in the application.

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