Stopping the clocks on protected action: FWC suspends midwives’ strike

A fresh decision of the Fair Work Commission (FWC) has shone a spotlight on one of the lesser travelled pathways for dealing with protected industrial action under the Fair Work Act 2009 (Cth) (FW Act). Section 424 of the FW Act requires the FWC to suspend or terminate protected industrial action where it is satisfied that the action "has threatened, is threatening, or would threaten" to endanger the life, personal health or safety, or the welfare of the population or part of it.

In Healthscope Operations Pty Ltd v Australian Nursing and Midwifery Federation [2025] FWC 1591, Commissioner Ryan ordered a 26-hour suspension of planned strike action by birth-suite-competent midwives at Newcastle Private Hospital (NPH).

Summary of the case and outcome

• The dispute: While bargaining for a new enterprise agreement covering 12 Healthscope hospitals in NSW, the Australian Nursing and Midwifery Federation (ANMF) gave notice of a 24-hour stoppage (plus a further two-hour stoppage) at NPH's birthing suite.
• Healthscope’s application: The day before the action, after unsuccessful attempts to negotiate a compromise with the ANMF, Healthscope applied under s 424 for an urgent order suspending the action, arguing that the proposed protected action would have necessitated the closing of the birthing suite, which in turn would have endangered expectant mothers and newborns.
• Key evidence accepted by FWC
  • NPH required minimum staffing of two birth-suite-competent midwives per shift to operate safely.
  • Only one qualified midwife remained available during the strike period.
  • If the action went ahead, the birth suite would have to close.
  • A public hospital co-located with NPH, John Hunter Hospital (JHH) had no capacity to absorb NPH had 85 women over 37 weeks’ gestation, and regularly handled 2–8 births on a Friday (being the day of the planned full-day action).
• The decision: Commissioner Ryan accepted that closing the birth suite would likely delay care for spontaneous deliveries and antenatal emergencies, “threatening… the personal safety or health, or the welfare, of part of the population”. On this basis he made the order sought by Healthscope, suspending the stoppage for its planned duration (from 6am on Friday 21 February to 8am on Saturday 22 February 2025).

S 424 key principles

The case canvasses the key principles and reiterates:

1. Threshold is factual, not speculative: The FWC must be satisfied on the balance of probabilities that the protected industrial action would threaten life, health, safety or welfare—a proper evidential basis is required.
2. Risk can arise from foreseeable knock-on effects: Here, the shortage of qualified staff due to the proposed industrial action and the inability to be able to mitigate sufficiently because of JHH’s lack of capacity created a chain of risk for mothers and babies.
3. High bar, but not "exceptional": There is no basis to read into s 424 a requirement for there to be "exceptional circumstances" or a risk of "significant harm", to satisfy the statutory threshold of a threat of endangerment to life, health, safety or wellbeing. The definition may be satisfied if the planned action is conduct that "puts a person's physical or mental state at risk of material detriment", or that "materially hinders or prevents improvement in a person's poor physical or mental state".

Practical lessons for employers

• Act early but build a robust evidentiary base: Healthscope’s detailed staffing rosters, patient bookings and correspondence with JHH proved decisive - together with the absence of sufficient evidence from the ANMF. Mere assertions of risk will not suffice.
• Explore and document alternatives: Consider redeployments, revised rosters, patient transfers or other mitigations first; the Commission will scrutinise what was practicable action for the employer to take to avoid the need for a s 424 order.
• Protected action remains protected—just paused (if suspended): A suspension under s 424 stops the clock on industrial action without ending bargaining leverage outright. Parties should use any pause to resume good-faith negotiations.

Key takeaways

The Healthscope decision reinforces that s 424 is a narrow, high-stakes safety valve rather than a routine industrial tactic. Employers contemplating an application must marshal clear, objective evidence of genuine risk to life, health or welfare. Unions, for their part, should be ready to demonstrate how essential services can be maintained during periods of protected industrial action.

Lander & Rogers' Workplace Relations & Safety team was pleased to secure this outcome for Healthscope. For further guidance on how to manage industrial action and on understanding the potential and limits of s 424, please contact a member of our team.