Federal Court of Australia

Australian Nursing and Midwifery Federation v St Vincent’s Private Hospitals Ltd [2025] FCA 18

ORDERS

PENAL NOTICE:

THE COURT NOTES THAT:

1.    The Applicant by its counsel has given the usual undertaking as to damages.

THE COURT ORDERS THAT:

1.    Pending the hearing and determination of this matter or further order, the Respondent by its servants, officers, employees or agents is restrained from representing to its employees that the taking of the action authorised by items 21, 24 and 25 of the protected action ballot attached to this order and notified on 24 December 2024 is unlawful and unprotected industrial action.

2.    By 4.00 pm on 20 January 2025, the Respondent give notice to each of its employees of order 1 above.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

HORAN J:

1    The Australian Nursing and Midwifery Federation commenced this proceeding by an originating application filed on 15 January 2024, in which it claimed declaratory and injunctive relief and the imposition of penalties in relation to alleged contraventions of s 345 of the Fair Work Act 2009 (Cth) (FW Act) by the Respondent, St Vincent’s Private Hospitals Limited (trading as St Vincent’s Private).

2    The Federation has applied for interlocutory relief to restrain St Vincent’s from engaging in conduct that is alleged to contravene s 345 of the FW Act pending the hearing and determination of the matter, and requiring St Vincent’s to advise each of its employees of any such order.

3    The application for interlocutory relief was heard on an urgent basis before me as the duty judge in the Victorian registry. Both parties were ready and content to deal with the application as one for interlocutory orders pending the final determination of the proceeding, or further order. Given the nature of the relief sought and the basis on which the interlocutory application was brought, these reasons have been prepared in a relatively short timeframe.

4    The Federation is a registered organisation that represents nurses and midwives, including nurses and midwives who are employed by St Vincent’s (nursing staff), which operates hospitals at various sites in Fitzroy, East Melbourne, Kew and Werribee in Victoria.

5    The proceeding arises from industrial action that is currently being taken by the Federation and its members in the context of bargaining for a new enterprise agreement. In summary, the relevant industrial action is in the form of the “closure” of beds at the various hospital sites operated by St Vincent’s, and a refusal to admit patients to those beds, which is said to have been authorised by a protected action ballot conducted pursuant to orders made by the Fair Work Commission under s 443 of the FW Act.

6    The Federation complains that St Vincent’s, through its management and senior employees, has been making statements and representations to nursing staff who are members of the Federation that protected industrial action in relation to bed closures is unlawful and unprotected.

7    Section 345(1) of the FW Act provides that:

(1)    A person must not knowingly or recklessly make a false or misleading representation about:

(a)    the workplace rights of another person; or

(b)    the exercise, or the effect of the exercise, of a workplace right by another person.

8    This prohibition does not apply if the person to whom the representation is made would not be expected to rely on it: s 345(2).

9    In support of the interlocutory application, the Federation relies on two affidavits of Ms Megan Reeve, who is an industrial officer employed by the Federation, affirmed on 15 January 2025 and 16 January 2025 respectively. In response, St Vincent’s relies on an affidavit of Ms Janine Loader, the Regional CEO of St Vincent’s, affirmed on 16 January 2025.

10    For the reasons that follow, I have concluded that the application for interlocutory relief should be granted and that orders should be made to restrain St Vincent’s from making representations to its employees that the relevant action in relation to bed closures authorised by the protected action ballot is unlawful or unprotected under the FW Act.

Factual background

11    The Federation commenced bargaining with St Vincent’s in relation to a proposed enterprise agreement in May 2024.

12    On 28 October 2024, the Federation applied to the Fair Work Commission for a protected action ballot order under s 443 of the FW Act.

13    The questions to be put to the employees in the proposed ballot relevantly included whether the employees authorised the taking of protected industrial action in the form of —

Following at least 5 working days’ notice to the employer

…

21.     The closure of beds (per ward or unit) in the event that ward/unit rosters, including leave replacement, are not maintained and will involve the closure of a number of beds per ward or unit so as to maintain the number of nurses and/or midwives to patients/residents as would have been the case had the absence been replaced.

…

Note 1: Exemptions will apply for cardiac, neurosurgery, oncology, maternity/obstetrics emergencies, paediatric, neonatal and palliative care patients or emergency patients where their condition is expected to deteriorate within 48 hours if they were to not be admitted for surgery.

24.     The closure of up to one in three operational beds (i.e. beds that were open as at the day before the commencement of the industrial action) and, subject to exemptions (see Note 1 [sic] below) a refusal to admit to those beds

25.     A refusal to reopen beds (i.e. beds that were closed as at the commencement of, or during, the industrial action) and, subject to exemptions (see Note 2 above [sic]) a refusal to admit to those beds.

Note 2: Exemptions will apply to cardiac, neurosurgery, oncology, maternity/obstetrics, paediatric, neonatal and palliative care patients, patients in intensive care, high dependency and coronary care units or emergency patients where their condition is expected to deteriorate within 48 hours if they were to not be admitted to an inpatient bed.

14    For convenience, I will refer to the actions covered by these ballot questions as the “Bed Closure Action”.

15    St Vincent’s objected to the application for a protected action ballot order, including on the basis that the concept of “closing” beds was not appropriate in a private hospital environment, as opposed to the public health system.

16    On 30 October 2024, the Fair Work Commission made a protected action ballot order pursuant s 443 of the FW Act, which included the questions set out above in relation to protected industrial action in the form of the closure of beds and the refusal to reopen beds, and (with specified exemptions) a “refusal to admit” to those beds.

17    The protected action ballot was held between 6 and 11 November 2024. A majority of eligible members voted in support of the proposed protected industrial action, including the Bed Closure Action. The results of the ballot were declared and published in accordance with s 457 of the FW Act.

18    On 24 December 2024, the Federation notified St Vincent’s of its intention to commence further protected industrial action authorised by the ballot, including the Bed Closure Action, from 8 January 2025.

19    After receiving this notice, the management team at St Vincent’s, including Ms Loader as the regional CEO, held a meeting to discuss the proposed action. The meeting discussed that the concept of “bed closure” is not applicable to the operations at St Vincent’s or to the work of nursing staff on wards at their hospital sites, who have no input into the decision whether a patient is admitted to the hospital nor any role to play in the admissions process.

20    The management team formulated a “Bed Meeting Script” for managers to follow in the event that nursing staff proposed to “close” beds. Among other things, the script instructed the meeting chair to reply in the following terms: “As you know, we are a private hospital and the concept of closing beds is not one that has any relevance to our operations. Our beds are either occupied or unoccupied — never closed”.

21    The script also directed staff that:

Nurses don’t have authority to determine whether a patient is going to be admitted or whether an unoccupied bed is going to be used, and those tasks do not form part of a nurse’s duties. Protected industrial action is about the way in which an employee performs their work (including restrictions or limitations on the work they perform). Decisions regarding the use of unoccupied beds and the admission of patients do not form part of the work of nurses.

22    If the employee nurse (who is described in the script as the “Job Rep/Workplace Delegate”) stated that there was a protected industrial action order allowing the refusal of admission and the closure of beds, the meeting chair was instructed to respond, “Nurses do not admit new patients to a private hospital (DRs do) and Nurses do not determine bed usage”. I assume that “DRs” in this script is a reference to “doctors”.

23    If the representative or delegate raised the issue of placing signs on beds, either to close the bed or to reserve the bed for emergencies, the meeting chair was instructed to respond that “Nurses have no authority to reserve beds, prevent the use of beds, or determine which beds are to be occupied and which are not to be occupied”. Further, the script instructed the meeting chair to state that the use of such signs “would be unprotected industrial action”, including on the basis that “the protected industrial action orders made no reference to placing signs on beds, nor to beds being ‘reserved’”, and repeating that “the concept of bed closure is not relevant or applicable in a private hospital, and the work performed by nurses does not involve them determining which beds will be occupied / not occupied”.

24    On 3 January 2025, the Federation notified its members that the Bed Closure Action would commence across all of St Vincent’s sites in Melbourne from 7.00 am on 8 January 2025.

25    The Bed Closure Action commenced on 8 January 2025 at 7.00 am across each of the Fitzroy, East Melbourne, Kew and Werribee sites in wards that do not generally or predominantly deliver cardiac, maternity/obstetrics, emergency, paediatric or neonatal care. Bed closure numbers on each participating ward were to be determined by the patient admission lists throughout the day, with a maximum of one in three operational beds being closed and excluding patients admitted for an exempt form of care.

26    On the morning of 8 January 2025, Ms Loader sent an email to all staff with the subject, “Message from the CEO — EBA and protected industrial action update for staff”, which relevantly stated:

Good morning, following discussions at today’s bed meetings, we remain ready to care for our community in line with demand for our services. Unlike public hospitals, beds in our facilities are either occupied or unoccupied — they aren’t closed.

As negotiations for a new enterprise agreement continue, I respect our nurses’ and midwives’ right to take protected industrial action. However, protected industrial action does not extend to decisions and activities outside the work done by nurses and midwives — such as the decision to use, or not use, beds.

As a private hospital, it is the role of the [Visiting Medical Officer] to determine if a patient is going to be admitted.

27    In her affidavits, Ms Reeve gives evidence of various representations that are said to have been made by managers at St Vincent’s to nursing staff who are members of the Federation and job representatives on 8, 9 and 13 January 2025, as well as her own observations at St Vincent’s Fitzroy site on 10 January 2025. The precise details of the representations made on each of these occasions is potentially the subject of a factual dispute between the parties. For the purposes of the present application, it is unnecessary to make any findings of fact or to resolve any differences in the evidence.

28    The representations alleged to have been made include statements to the effect that patient admissions are the decision of doctors and not nursing staff, and that bed closures do not apply in a private hospital such as St Vincent’s, where beds are either occupied or unoccupied. Such statements are consistent with the bed meeting script prepared by St Vincent’s management. Ms Reeve also gives evidence of statements having been made to nursing staff that bed closures are not protected industrial action and are not lawful, and that nursing staff are not permitted to display bed closure signs. Further, there is evidence of bed closure signs having been repeatedly removed or taken down.

29    After having spoken to the relevant managers, Ms Loader does not agree with some details of the conversations recounted in Ms Reeve’s affidavit. In broad terms, it is accepted that statements were made to the effect that bed closures do not apply at St Vincent’s and that bed closure signs would be taken down. It is disputed that statements were made to the effect that the Bed Closure Action was illegal or unlawful, but accepted that some statements were made that the bed closures were unauthorised and unprotected action or were “not in line with protected action”.

30    Ms Loader gives evidence that St Vincent’s management have been instructed to remove bed closure signs if they become aware of them on the basis that “the use or otherwise of beds at St Vincent’s Hospital (and admission of a patient to the same) is not a matter in relation to which nursing staff have duties or input”.

31    Ms Loader also relevantly states in her affidavit:

If a [Visiting Medical Officer] admits a patient to that bed, we expect all nurses to provide nursing care to that patient as directed. I believe that this expectation is permissible because a refusal to provide nursing care to a particular bed is not included in the notified actions.

32    On 8 January 2025, the Federation wrote to St Vincent’s seeking corrective statements and a retraction of representations made to employees to the effect that the Bed Closure Action was unlawful or illegal, which were alleged to misrepresent the employees’ ability lawfully to engage in protected industrial action. The Federation stated that bed closures were an accepted form of protected industrial action which constitutes “a well-known way to describe the withdrawal of nursing labour to a point of care”.

33    On the same date, the Federation sent an email to its members with the subject, “Stay Strong in the Face of Management Intimidation”, in which the Federation advised members that the Bed Closure Action is lawful protected industrial action and affirmed the right of members to take the Bed Closure Action in accordance with the FW Act.

34    The parties and their legal representatives exchanged correspondence between 9 January 2025 and 15 January 2025, in which the parties maintained their respective positions about the scope of the protected industrial action. St Vincent’s restated its position that it does not have a system of closing or opening beds and that nursing staff have no authority to determine patient admissions. The Federation said that bed closures involving the withdrawal of nursing labour to a point of care had been approved as protected industrial action, and demanded the retraction and correction of St Vincent’s representations to the contrary. St Vincent’s insisted that it could continue to admit patients to beds notwithstanding that nursing staff may mark the beds as closed and refuse to participate in admitting patients to such beds. The Federation contended that nursing staff can mark a bed as “closed”, meaning that nursing labour is withdrawn from that bed, and may, in addition, refuse to participate in admitting patients to such beds in accordance with the notification of protected industrial action. St Vincent’s disputed that the wording of the relevant items of the protected action ballot order are capable of authorising the withdrawal of nursing labour or a ban on the provision of care to patients who have been admitted by St Vincent’s and who are occupying a bed — rather, St Vincent’s contended that the Bed Closure Action is “focused on action which results in the non-usage of beds and the non-admission of patients to beds”, and has no application “[w]here a patient has been admitted, or a bed is occupied”.

35    In her affidavit, Ms Loader elaborates on the process by which patients are admitted to beds at St Vincent’s. It is unnecessary to recount that evidence in detail. Essentially, patient admissions are initiated by Visiting Medical Officers, that is, doctors with whom St Vincent’s has entered arrangements conferring a right to use available hospital beds for their patients. St Vincent’s is responsible for ensuring that such hospital beds have the requisite degree of nursing care and other requirements. The duties of nursing staff on the wards commence after the admission of a patient has taken place. Such nursing staff have no duties relating to the admission of patients and, in particular, they do not make decisions about whether a patient will be admitted, nor about the bed to which a patient will be allocated. Ms Loader states that the use of beds is determined by the number of admissions effected by VMOs at any given time, and that the provision of unoccupied beds is part of the service that St Vincent’s provides to VMOs. In the event that St Vincent’s does not have unoccupied beds or sufficient staffing in a particular ward, it “would provide for a later time of admission or would reallocate a patient to a ward which had sufficient staff to meet their needs”.

Applicable principles

36    The Court has power to grant injunctive relief to prevent, stop or remedy the effects of a contravention of a civil remedy provision such as s 345 of the FW Act: see s 545(2)(a) of the FW Act, read with item 11 of the table set out at s 539(2); see also s 23 of the Federal Court of Australia Act 1976 (Cth).

37    The principles governing the Court’s discretion to grant interlocutory injunctive relief are well-established. An applicant must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of injunctive relief: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]–[72] per Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed at [19]). In order to demonstrate a prima facie case or a serious question to be tried, it is not necessary for an applicant to establish that success at trial is probable or more likely than not; rather, the applicant must demonstrate sufficient prospects to warrant the grant of interlocutory relief. In addressing the balance of convenience, the Court is required to weigh up the inconvenience or injury to the applicant from refusing to grant the injunction against the inconvenience or injury to the respondent from the grant of the injunction, in order to determine whether it is just in all of the circumstances for the injunction to be granted. In this regard, the question of whether there is a prime facie case must be considered together with the balance of convenience and vice versa: see Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ).

38    There was no dispute between the parties about the elements of s 345 of the FW Act. In order to establish a contravention of s 345 it is necessary to demonstrate that:

(1)    a person made a representation about the workplace rights of another person or the exercise or the effect of the exercise of such a workplace right;

(2)    the representation was false or misleading; and

(3)    the false or misleading representation was made knowingly or recklessly.

39    In particular circumstances, it might also be necessary to meet a contention that the person to whom the representation is made would not be expected to rely on it.

40    The principles applicable to alleged contraventions of s 345 were relevantly summarised by Jagot J in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 at [452]–[459], including that:

(1)    section 345 is intended to protect the rights given to workers by the FW Act and ensure that neither an employer nor any other person misleads workers about their rights under that Act;

(2)    the particular group to whom the representations are alleged to be directed must be identified;

(3)    in order to be about a workplace right, there must be some connection or relationship between the representation and the workplace right or its exercise;

(4)    a representation is misleading if it has a tendency to lead a person into error, as opposed to a tendency to create mere confusion;

(5)    the state of mind required by s 345 attaches to the false or misleading quality of the representation, and not the act of making the representation;

(6)    a false or misleading representation is made knowingly where the maker of the representation does so purposely or deliberately or intentionally while knowing that the representation is untrue; and

(7)    a representation is made recklessly when the maker of the representation either closes their eyes to the obvious as to truth of the representation, or, knowing that it is likely that the representation is not correct, chooses to make it, not caring whether or not it is correct.

Consideration

Prima facie case

41    In relation to the existence of a prima facie case, having regard to the evidence on the interlocutory application, I consider that there is a serious question to be tried as to whether St Vincent’s has made representations about the exercise by its employees of a workplace right, or the effect of their exercise of a workplace right, that are false or misleading. There is also a prima facie case that those representations, which were made or authorised by senior management at St Vincent’s, were made with the requisite knowledge or recklessness as to their false or misleading nature.

42    The alleged representations on which the Federation relies are to the effect that the protected industrial action does not extend to the closure of beds or the refusal by nursing staff to admit to closed beds and that the actions of nursing staff to effect bed closures are unlawful and unprotected under the FW Act.

43    Insofar as such alleged representations were made in the context of statements about the role of nursing staff in the admission of patients or the allocation of patients to beds in hospital wards, the latter statements are not themselves the focus of the Federation’s case. Rather, it is the alleged representation that actions covered by the items of the protected action ballot that constitute the Bed Closure Action are not protected by the FW Act and are therefore unlawful.

44    Underlying the dispute between the parties, there is an apparent divergence of view about the scope of the protected industrial action and, in particular, the meaning and effect of the relevant items constituting the Bed Closure Action.

45    The Federation contends that the “closure” of beds involves the act of withdrawing nursing labour to a point of care, and in particular the withdrawal of nursing care provided to specific hospital beds so that patients cannot be admitted by the hospital to those beds. Ms Reeve has given evidence to that effect. Ms Reeve also states that actions are taken to communicate to hospital management and staff that nursing labour has been withdrawn from a specific bed, including the prominent display of “bed closed” signage, the notation of closed beds on ward bed lists or boards, and verbal or written communication to ward managers about the number of closed beds during each shift.

46    Accordingly, the closure of beds is said to operate independently of the admissions process, and irrespective of who makes the decision to admit patients or the procedure by which those admissions are carried out.

47    The Federation submits that such an understanding of the Bed Closure Action accords with its accepted meaning in the industry and that the protected action ballot should be construed in accordance with “ordinary industrial English”: see Davids Distribution Proprietary Limited v National Union of Workers (1999) 91 FCR 463 at [88] (Wilcox and Cooper JJ, with whom Burchett J agreed). The Federation also relies on past examples of protected action ballots which have included the closure of beds, the refusal to reopen beds, and the refusal to admit to closed beds: see e.g. the order made by the Fair Work Commission on 7 October 2011 in Australian Nursing Federation v Victorian Hospitals’ Industrial Association; see also the subsequent proceedings in Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] 214 IR 148. It does not appear that there was any argument in that case whether the closure of beds could be a form of protected industrial action. I note that, as the industrial action in that case was directed to hospitals in the public health system, it is of limited assistance in relation to the issues raised in the present case.

48    On the other hand, St Vincent’s contends that the plain meaning of the Bed Closure Action does not encompass the placement of bed closure signs or the withdrawal of nursing labour to closed beds. To the extent that the items refer to the “closure of operational beds” or a “refusal to admit” to those beds, St Vincent’s argues that such matters are not within the scope of the work or duties of nursing staff on wards. At one level, this would mean that the wording of the Bed Closure Action in the protected action ballot order is misdirected. More fundamentally, St Vincent’s submits that the Bed Closure Action cannot be “industrial action” as defined in s 19 of the FW Act, because it does not involve a refusal to perform or any limitation or restriction on the performance of work that is within the scope of the duties of nursing staff. It is on that basis that St Vincent’s contends that the Bed Closure Action is not protected industrial action, notwithstanding that it was included in a protected action ballot that was authorised by the Fair Work Commission and approved by employees.

49    It is not appropriate to determine this controversy on the present application for interlocutory relief. It is sufficient for the Federation to establish that there is a serious question to be tried that any representations made by St Vincent’s to the effect that the Bed Closure Action is not protected industrial action are false or misleading.

50    In this regard, St Vincent’s does not dispute that the requirements of ss 409(1)(a) to (d) of the FW Act in relation to “employee claim action” have been met, subject to its submission that the Bed Closure Action is not “industrial action” within the meaning of s 19. This includes an acceptance that the Bed Closure Action has been authorised by a protected action ballot, and that the Federation has given written notice of the Bed Closure Action in accordance with the FW Act.

51    As was submitted by the Federation, the question whether or not the Bed Closure Action, or any other industrial action taken by nursing staff at St Vincent’s, is protected industrial action can be made the subject of an application to the Fair Work Commission under s 418 of the FW Act.

52    In my view, it is at least arguable that the Bed Closure Action under the protected action ballot order should be construed as encompassing the withdrawal of nursing labour to a point of care such as a designated bed in a hospital ward. Such a construction would give some operation to the concept of closure of a proportion of beds. Similarly, it is arguable that a “refusal to admit” to beds that are subject to such “closure” is intended to refer to the provision of nursing labour to those beds or to any assistance provided by nursing staff in the admission of patients to those beds. This is consistent with the inclusion of exemptions to any such “refusal to admit” in respect of particular categories of patients with more pressing needs.

53    It is also arguable that the “closure” of beds, as referred to in the items comprising the Bed Closure Action, would cover steps taken by nursing staff to designate the beds in respect of which such action is being taken, such as the display of signs or the making of notations on ward bed lists.

54    Accordingly, in so far as St Vincent’s has made or will make representations to nursing staff that the Bed Closure Action is not protected industrial action, there is a serious question to be tried that those representations are false or misleading in the sense that they have a tendency to lead the persons to whom representations are made into error (that is, into believing that the relevant actions are unprotected or unlawful).

55    It is clear that the representations that are alleged to have been made by St Vincent’s are about the exercise of workplace rights by nursing staff, namely the right to take protected industrial action in the context of an enterprise bargaining process.

56    As to whether there is a prima facie case that St Vincent’s knew or was reckless as to the falsity or misleading quality of the representations, Ms Loader has given evidence that the statements were made with a genuinely held belief that they were true and correct based on her understanding of St Vincent’s operations and the duties of nursing staff. Similarly, there is evidence that each of the management staff had a genuine belief in what they said to the relevant members of the Federation.

57    Nevertheless, I consider that there is a serious question to be tried as to whether the representations were made with the mental state required for a contravention of s 345 of the FW Act. The relevant representations were made or authorised at senior levels of management with full knowledge of the protected action ballot order that had been made by the Fair Work Commission and the notification of the Bed Closure Action as protected industrial action by the Federation. Indeed, the representations were made in direct response to that order and notification. The fact that the makers of the representations held a genuine belief in their truth does not itself necessarily exclude a finding that they were reckless in the relevant sense, either in relation to the truth of the representations or whether they had a tendency to lead the persons to whom they were made into error. Further, and in any event, the evidence of Ms Loader or other relevant witnesses about their state of mind is open to be tested or challenged or met with other evidence at trial.

58    There is no suggestion in the material before the Court that the persons to whom the representations were made would not be expected to rely on those representations. Counsel for St Vincent’s advanced an argument that members of the Federation were aware of the difference of view about the scope of the protected industrial action, and were prepared to act in accordance with the advice of their registered organisation. However, there is evidence that at least some of the nursing staff were worried or anxious following the representations made by St Vincent’s management, and wary of taking further action in relation to bed closures due to a fear of potential disciplinary action or other reprisals. Further, as was submitted by counsel for the Federation, it can be inferred that the representations were made by St Vincent’s management for the purpose of dissuading those to whom they were made from engaging in the Bed Closure Action.

Balance of convenience

59    In addressing the balance of convenience, it is important to keep in mind that the interlocutory relief sought by the Federation is simply to restrain St Vincent’s from making representations to its employees that the Bed Closure Action, having been authorised by a protected action ballot and notified in accordance with the formal requirements of the FW Act, is unlawful and unprotected industrial action (that is, is not protected industrial action).

60    Save for the argument that the Bed Closure Action is not “industrial action” as defined in s 19 of the FW Act, notwithstanding its authorisation by a protected action ballot, the effect of the injunction is to prevent St Vincent’s from representing to its employees that the Bed Closure Action has not been properly authorised under the FW Act.

61    The order places a negative restraint on the making of certain representations by St Vincent’s, and does not require any positive statement whether by way of retraction or correction of previous representations.

62    I am conscious that the terms of the interlocutory injunction do not necessarily resolve any difference of views between the parties about the scope of the actions encompassed in the Bed Closure Action, that is, the meaning or effect of items 21, 24 and 25 of the protected action ballot. Thus, any controversy about whether or not particular actions are covered by the Bed Closure Action might potentially be displaced to a dispute in relation to the scope of operation of the injunction.

63    Nevertheless, I do not consider that an injunction in such terms involves any material inconvenience to St Vincent’s. There was no evidence led of any prejudice or injury that would result if St Vincent’s were to be restrained from making representations to its employees that the Bed Closure Action was unlawful and unprotected. Counsel for St Vincent’s submitted that the injunction could have the effect of preventing management from taking down or removing bed closure signs which would interfere with the admission of patients. It was not apparent how the placement of a sign on or near a bed in a hospital ward would itself impact on the use of that bed. Further, counsel suggested that the injunction might prevent St Vincent’s from bringing an application to the Fair Work Commission to stop the Bed Closure Action on the basis that it was not protected industrial action. I do not accept that submission. Nothing in the injunction is directed to the commencement or prosecution of such a proceeding under the FW Act, which could not itself be regarded as constituting the making of any representation to employees.

64    There was no argument advanced by St Vincent’s that the injunction would result in any risk to the safety of patients. In any event, if the Bed Closure Action were to result in a threat to the life, safety or health of any part of the population, an application can be made to the Fair Work Commission under s 424 of the FW Act to suspend or terminate the protected industrial action.

65    On the other hand, the refusal to grant an injunction would result in inconvenience or injury to members of the Federation and other employees at St Vincent’s. The representations have a tendency to affect the exercise by employees of their workplace rights in relation to the Bed Closure Action authorised by the protected action ballot. St Vincent’s pointed to evidence that some employees were continuing to take actions in relation to bed closures despite the representations made by St Vincent’s arguing that this indicated that employees understood that St Vincent’s and the Federation held differing views, but that they would continue to follow the advice of the Federation. However, as mentioned above, there is also evidence that several employees were worried as a result of the representations made by St Vincent’s management, and were potentially dissuaded from taking actions authorised by the protected action ballot.

66    Accordingly, I find that the inconvenience to the Federation and its members of refusing to grant the interlocutory injunction outweighs any inconvenience to St Vincent’s from the grant of that injunction.

67    Finally, the Federation seeks an order requiring St Vincent’s to advise or notify each of its employees of the orders made by the Court. I have considered whether such an order is necessary, or whether it would be sufficient for the Federation to advise its members of the outcome of this interlocutory application. On balance, I consider that St Vincent’s should provide notice of the order to its employees. In this regard, I note that the email sent by Ms Loader on 8 January 2025 in relation to the Bed Closure Action was sent to all staff, and it is appropriate that notice of the order now made by the Court be given in a similar fashion.

Conclusion

68    For those reasons, I make the following orders:

(1)    Pending the hearing and determination of this matter or further order, the respondent by its servants, officers, employees or agents is restrained from representing to its employees that the taking of the action authorised by items 21, 24 and 25 of the protected action ballot attached to this order and notified on 24 December 2024 is unlawful and unprotected industrial action.

(2)    By 4.00 pm on 20 January 2025, the Respondent give notice to each of its employees of order 1 above.

The orders will note the undertaking in the usual form.

Associate:

Dated:    24 January 2025