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[63]
[2026] FWC 556
General information, not legal advice.
Fair Work Commission
2026-02-22
Original judgment source is linked above.
s.425 - Industrial action
Application to suspend protected industrial action - cooling off period - undertaking given by union - application dismissed
[1] This decision concerns an application by the Victorian Hospitals' Industrial Association (VHIA) under s 425 for suspension of protected industrial action being engaged in for a proposed enterprise agreement being the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2025-2027 (the Proposed Agreement).
[2] The Proposed Agreement will cover 82 employers who are Victorian public sector health services and employees employed in a wide range of health and allied services classifications.
[3] The VHIA is the employer bargaining representative for the 82 employers to be covered by the Proposed Agreement.
[4] The Health Services Union (HSU), acting though its Victoria No.1 Branch known as the Health Workers' Union (HWU), is clearly the most significant employee bargaining representative for the Proposed Agreement both in terms of the number of employees it represents and industrial impact. Under the Fair Work Act, the HWU is the default bargaining representative of its members who will be covered by the Proposed Agreement.
[5] The Proposed Agreement will replace Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 (the Current Agreement). The nominal expiry date of the Current Agreement was 30 June 2025.
[6] On about 28 January 2025, bargaining commenced for the Proposed Agreement. Thereafter the VHIA, HWU and some other bargaining representatives have participated in numerous bargaining meetings.
[7] The bargaining between the VHIA and HWU has been difficult. The HWU, through its lead negotiator Mr Jake McGuinness (HWU Lead Organiser), has vigorously pressed claims on behalf of HWU members and campaigned to obtain improved industrial outcomes for those members. The VHIA has also sought to advance the interests of the employers.
[9] On 25 November 2025, the results of the protected action ballot orders were published with the eligible voters in each separate ballot authorising the various forms of industrial action. Thereafter, the HWU has sent employers notices of protected industrial action (PIA Notices). The notified action has taken the form of stop works, 'stage 1 bans' and 'stage 2 bans '. The stage 1 bans are in the nature of administrative and other non-clinical bans. The stage 2 bans constitute more significant industrial action and include clinical bans.
[10] I note that many of the HWU's notified stage 1 and stage 2 bans are the subject of express exclusions directed to the maintenance of patient care or safety or exclusions for emergencies. Furthermore, the HWU's PIA Notices contain overarching operational notes. The overarching notes indicate that the stage 1 and stage 2 bans will be undertaken in a manner consistent with occupational health and safety requirements, infection-control obligations, patient welfare and patient privacy and also that the authorisation to engage in industrial action does not apply to duties that are immediately necessary to prevent serious or imminent risk to the life, personal safety, or health of patients, visitors or staff.
[11] The stage 1 bans have been engaged in by HWU members in since 10 December 2025. The stage 2 bans have been engaged in by HWU members since 14 January 2026. The stage 1 bans and stage 2 bans are presently encapsulated in the HWU PIA Notice dated 26 January 2025.
[12] On 30 December 2025, the VHIA notified a bargaining dispute in the Commission under s 240 of the Act. Section 240 permits a bargaining representative to apply to the Commission to deal with a bargaining dispute if the bargaining representatives are unable to resolve the dispute. The s 240 application was also before me and the bargaining representatives including the VHIA and HWU have attended five conferences to progress resolution of the dispute. Significant bargaining progress has been made in the conferences before the Commission.
[13] In a s 240 conference on 19 February 2026, the VHIA made a revised offer which dealt with many of the outstanding bargaining issues between the VHIA and the HWU. The revised VHIA offer constituted, on an overall basis, a substantial improvement beneficial to employees compared to previous VHIA offers. In the context of this material progress, the VHIA had a natural and reasonable interest in obtaining mitigation of the impact of industrial action on the provision of clinical services. In recognition of the bargaining progress and the reasonable concern of the VHIA concerning impact on clinical services, I issued a statement and recommendation which noted the substantial improvement in the revised VHIA officer, specified that the revised VHIA offer would be conveyed in writing to the HWU and other bargaining representatives on 20 February 2026, specifying that the employee bargaining representatives respond to the VHIA by 27 February 2026 and that the HWU cease certain bans, including the clinical bans, pending the HWU's response to the revised VHIA offer. The HWU response to the VHIA revised offer was expected to be given on Friday 27 February 2026. This would enable HWU an opportunity to poll its members on the revised VHIA offer.
[14] On 20 February 2026, it was evident that the HWU had not ceased the bans referred to in the recommendation. However, the HWU did send a communication to its members analysing the VHIA revised offer and recommending that members vote "Yes" to that offer. The HWU is conducting a vote of members via an internal HWU poll. That HWU member poll is due to close at 5:00pm on Wednesday 25 February 2026.
[15] On 20 February 2026, at the request of the VHIA, a further conference was conducted by the Commission under s 240 of the Act to deal with the HWU's continued application of clinical bans. The further conference between the HWU and VHIA did not resolve this issue.
[16] On the evening of Friday 20 February 2026, the VHIA made an urgent application to the Commission under s 425 of the Act for an order suspending protected industrial action being engaged in by HWU members at 71 employers. The application was heard on Saturday 21 February 2026. The VHIA was represented by Mr Stuart McCullogh (Chief Executive Officer), Ms Bree Marinier (Legal Officer) and Mr Tim Nagle (Director Workplace Relations). The HWU was represented by Mr McGuiness and Mr Joshua Bruni (Industrial Officer).
[17] There was no real controversy concerning the material facts, albeit the parties diverged on the conclusions to be drawn from those facts. The parties tendered a range of documents into evidence.
[18] Part 3-3 (Industrial Action) of the Act is constituted by 10 Divisions dealing with industrial action including protected industrial action (Div 2) and the capacity of the Commission to suspend or terminate protected industrial action (Div 6).
[19] Division 6 makes provision for the Commission to suspend or terminate protected industrial action on various grounds. Under s 424, the Commission may suspend or terminate protected industrial action if the action is threatening public health, safety or welfare.
Under s 425, the Commission must suspend protected industrial action if it is satisfied that "the suspension is appropriate" taking into account certain specified matters.
[20] As the present application is made under s 425, it is useful to set out that provision in full:
425 FWC must suspend protected industrial action--cooling off
(1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:
(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;
(b) the duration of the protected industrial action_;_
(c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act_;_
(d) any other matters that the FWC considers relevant.
(2)The FWC may make the order only on application by:
(a) a bargaining representative for the agreement; or
[21] If the Commission makes an order under s 425, it must specify in the order the period for which the protected industrial action is suspended (s 427).
[9] The prerequisite for the enlivenment of s 425(1), once an application has been made in accordance with s 425(2), is that 'protected industrial action for a proposed enterprise agreement... is being engaged in'. The expression 'is being engaged in', by its use of the present participle, connotes contemporaneity. The precise degree of contemporaneity required does not arise for consideration on the facts of this case, as we discuss below. In its requirement for engagement in protected industrial action, the statutory prerequisite does not distinguish between employee claim action, employee response action and employer response action, nor does it prescribe who must be engaging in the relevant protected industrial action. Thus, any bargaining representative, including a bargaining representative who is engaging in protected industrial action, can apply for an order under s 425(1).
[10] Once s 425(1) is enlivened, the Commission must make a suspension order if the Commission reaches a state of satisfaction that the suspension would be 'appropriate'. The criterion of appropriateness requires the making of an evaluative judgement which may be characterised as discretionary in nature. The Commission's consideration of appropriateness must take into account the matters specified in paragraphs (a)-(d) and, to this extent, the section guides the formation of the Commission's evaluative judgment. The matters must therefore be given weight and treated as fundamental elements in the Commission's consideration,[3] but no individual matter is necessarily determinative.
[23] Under s 413(7)(a) of the Act, a common requirement for industrial action to be protected industrial action is that there be no order in operation suspending or terminating industrial action under Division 6 of Part 3-3. Consequently, if the Commission makes a suspension order under s 425, the effect is that no protected industrial action may be taken during the operation of the order.
[24] I am satisfied that VHIA has standing to make the s 425 application. I am further satisfied that protected industrial action is being engaged in by members of the HWU for the Proposed Enterprise Agreement.
[25] Therefore, it is necessary for me to consider whether I am satisfied that it is "appropriate" to suspend protected industrial action having regard to the matters specified in paragraphs (a)-(d).
[26] Needless to say, the HWU forcefully oppose the VHIA application to suspend protected industrial action.
[27] In relation to s 425(1)(a), the VHIA submit that suspension would be beneficial as it would enable HWU members to focus on whether they endorse the VHIA's revised offer rather than being distracted by the taking of protected industrial action. In response, the HWU submit that its members are entirely capable of contemporaneously considering the terms of the VHIA revised offer whilst engaging in protected industrial action. The HWU submit that on two previous occasions during the bargaining members have responded in significant numbers to online HWU polls concerning VHIA offers whilst at the same time engaging in protected industrial action. The HWU submit that there is no reason to consider that its members are unable over the next few days to undertake a similar task whilst also engaging in protected industrial action. Furthermore, the HWU submit that it is confident in present circumstances (ie absent a suspension order) that the VHIA revised offer will be endorsed by its members enabling the HWU to accept the offer. The HWU submit that if a s 425 order is made, there is a material prospect that such suspension may enliven member sentiment to reject the VHIA revised offer.
[28] I place some weight on the HWU submission regarding the sentiment of its members. The union is best placed to gauge the sentiment of HWU members. Furthermore, since the making of the revised VHIA offer, the HWU has not notified additional industrial action or sent heightened communications to members relating to the taking of protected action and the bargaining. The evidence before me indicates that the HWU has simply sent a communication to members which analyses the offer and canvases options and recommends in clear terms that HWU members endorse the revised VHIA offer. I note that it is not desirable that the HWU did not conform with the recommendation of the Commission concerning the cessation of certain bans particularly clinical bans. However, this matter does not of itself provide a basis for the Commission to be satisfied that a suspension would be beneficial because it would assist in resolving the matters at issue. Consequently, I am not presently satisfied that a suspension would be would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue.
[29] In relation to s 425(1)(b), the industrial action presently being engaged in by HWU members has been occurring since about 10 December 2025 (being Stage 1 bans) and 14 January 2026 (stage 2 bans). I have had regard to the duration of the industrial action.
[30] In relation to s 425(1)(c), the VHIA submitted that suspension would not be contrary to the public interest or objects of the Act. In relation to public interest, the VHIA point to an impact of clinical bans on the timely completion of category 2 surgery. Category 2 surgery is surgery which is not urgent but is semi-urgent and to be completed within 90 days. The VHIA noted that three specific clinical bans applied by theatre technicians and central sterile services department (CSSD) staff, will cause cancellations and rescheduling of category 2 surgeries and thereby likely to have a detrimental impact on patient welfare. The VHIA submitted that the impact on patients could also be taken into account under s 425(1)(d). I accept the VHIA submissions that the three clinical bans applied by theatre technicians and central sterile services department (CSSD) staff will cause delay and rescheduling for some category 2 surgeries.
[31] Whilst s 425 is not primarily concerned with public health safety and welfare (compare s 424), I consider that the impact of the three identified bans on the timely completion of surgeries and associated impact on patient welfare are relevant matters to consider under s 425(1)(c) and (d).
[32] Indeed, at a level, this aspect of the VHIA case was the most factually compelling aspect of its application. It seems to me unsatisfactory that the three clinical bans will continue to be applied between Saturday 21 February 2026 and Wednesday 25 February 2026 in circumstances where the HWU considers that the VHIA's revised offer is a good offer, the HWU has recommended to its members that they endorse the offer and the HWU considers that members are likely to accept the offer. During the hearing, I raised this matter with the HWU and sought an indication whether the union would be prepared to provide an undertaking to the Commission relating to a temporary cessation of the three identified clinical bans and further associated undertakings. I indicated to the HWU and the VHIA that I considered undertakings from the HWU in suitable terms would be a relevant matter for me to consider in deciding the VHIA application, especially having regard to the case put by the VHIA and the terms of s 425(1)(c) and (d).
[33] As a consequence of my inquiry of the HWU regarding potential undertakings, the HWU provided three satisfactory undertakings which were given at the hearing and provided subsequently in writing. I consider those undertakings are relevant for me to have regard to under s 425(1)(c) and (d).
[34] The first undertaking given provides for the HWU to send communications to its members on Sunday 22 February 2026 notifying them, amongst other things, that it withdraws with immediate effect the following clinical bans notified in the HWU PIA Notice dated 26 January 2026:
30. A ban on theatre technicians performing all duties associated with elective surgical procedures. This ban does not apply to Category 1 elective procedures or to oncology or palliative care patients
31. A ban on CSSD staff performing all duties that process or prepare surgical instruments for elective procedures. This ban does not apply to Category 1 elective procedures or to oncology or palliative care patients.
33. A ban on theatre technicians providing any support to more than one operating theatre at a time. This ban does not apply to Category 1 procedures or emergencies.
[35] The first undertaking also makes provision for the HWU to send an email to VHIA and employers withdrawing bans 30, 31 and 33.
[36] The second undertaking provides that the HWU will not re-notify bans 30, 31 and 33 before 6:00pm on Friday 27 February 2026.
[37] The third undertaking is that the HWU will by 6:00pm Wednesday 25 February 2026, notify VHIA of the result of the internal HWU member ballot on the revised VHIA offer and will, if the members endorse the revised VHIA offer, notify members, the VHIA and employers of the cessation of all protected industrial action as notified in the HWU PIA Notice dated 26 January 2026.
[38] The VHIA does not criticise the terms of the HWU undertakings but also does not withdraw its s 425 application. The full terms of the undertakings have been sent in writing by the HWU to the Commission and have been retained on the Commission file.
[39] The operation of the first and second undertakings eliminate the potential impact of the identified bans by theatre technicians and CSSD staff on the timely conduct of category 2 surgery, pending the outcome of the internal HWU member ballot. The third undertaking is facilitative of the finalisation of the bargaining, particularly if the HWU member ballot results in endorsement of the VHIA revised offer.
[40] It seems to me that the HWU undertakings meet and defuse the most meritorious aspect of the case presented by the VHIA. As I have noted above, I consider that the terms of the HWU undertakings are a relevant consideration for me to take into account in deciding the VHIA application. Because of the HWU undertakings, it is apparent that category 2 surgeries can proceed next week in Victorian public hospitals unaffected by the three identified bans being applied by theatre technicians or CSSD staff.
[41] In light of the HWU undertakings and the other matters I have referred to above in my consideration of s 425(1)(a) - (d), I am not satisfied that it is appropriate for me to make an order suspending protected industrial action under s 425.
[42] I therefore dismiss the VHIA application.
[43] In doing so, I note that the VHIA application has ultimately resulted in an outcome involving a cessation of the three bans which would otherwise cause delay and rescheduling of some category 2 surgery scheduled to occur next week. At the same time, HWU members remain entitled to take other forms of protected industrial action notified in the HWU PIA Notice dated 26 January 2026. If the HWU members endorse the VHIA's revised offer on Wednesday 25 February 2025, these other forms of protected action will of course cease.
[44] I note that the Commission has re-listed the s 240 conference for report back on Monday 2 March 2026.
S McCullogh, B Marinier and T Nagle, for the VHIA
[1] Health Services Union v Albury Wodonga Health and Others [2025] FWC 3301.
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