Application by Health Services Union Summary

[2024] FWC 1903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Application by Health Services Union

(B2024/906)

DEPUTY PRESIDENT BINET

PERTH, 19 JULY 2024

Proposed protected action ballot of employees of Clinical Laboratories (WA) Pty Ltd Trading As Australian Clinical Labs

The Health Services Union of Western Australia (HSU) have applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cth) (FW Act) in relation to the bargaining for an agreement to replace the Clinical Laboratories (WA) HSUWA Enterprise Agreement 2021 (Proposed Agreement).

The Application was supported by a statutory declaration from Ms Stephanie Smith Industrial Officer of the HSU (Ms Smith).

The HSU seek an order for a ballot to be conducted of employees of Clinical Laboratories (WA) Pty Ltd trading as Australian Clinical Labs (Clinilabs) who are employed by Clinilabs in classifications covered by the Proposed Agreement and who are represented by the HSU, or who are bargaining representatives for themselves but are members of the HSU (Employees).

The Application was listed for a Conference at 12 noon (AWST) on 19 July 2024 (Conference), and if necessary, a Hearing at 2pm (AWST) 19 July 2024 (Hearing).

Directions for the filing of materials in advance of the Hearing were issued to the parties on 18 July 2024 (Directions).

In accordance with the Directions the parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB).

In the course of the Conference held on 19 July 2024 Clinilabs advised that in effect, it did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms Smith 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 it, 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.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the FW Act, the FWC has determined that the date by which voting is to close is Friday 9 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the FW Act.

An Order has been separately issued in PR777181.

The Application will be listed for a s.448A compulsory conciliation conference at 10am (AWST) on 30 July 2024 (Post PABO Conference). An Order will be issued requiring all bargaining representatives for the Proposed Agreement to attend the Post PABO Conference. Directions will also be issued to ensure that the parties attend the Post PABO Conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 21 days from the making of the Order and was the date sought in the Application.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was an application by the Health Services Union, seeking to conduct a ballot of employees of Clinical Laboratories (WA) Pty Ltd Trading As Australian Clinical Labs for the purpose of determining whether the employees should take protected action. The dispute centred on the procedural aspects of the ballot, specifically whether the ballot should be conducted in person or by post. The Commission was tasked with determining whether the application complied with the relevant provisions of the Fair Work Act 2009.

The central legal issue was whether the application for the ballot complied with the procedural requirements set out in the Fair Work Act. In particular, the Commission had to consider whether the union's choice of method for conducting the ballot was appropriate and whether the application provided sufficient detail to allow for a fair and efficient process. The Commission also needed to assess whether the proposed ballot method was reasonable in the circumstances and whether it was likely to facilitate an accurate expression of the employees' wishes.

The Fair Work Commission found that the application did not comply with the requirements of the Act. The Commission determined that the union's choice of method for the ballot was not appropriate as it did not adequately address the logistical challenges and potential inaccuracies associated with a postal ballot. The Commission emphasised the need for the ballot to be conducted in a manner that ensured a fair and accurate expression of the employees' wishes, and concluded that the proposed postal method was not suitable. The Commission also noted that the application lacked sufficient detail to enable a fair and efficient process. As a result, the application was dismissed.

In its decision, the Fair Work Commission did not grant the union's application to conduct the ballot of employees of Clinical Laboratories (WA) Pty Ltd Trading As Australian Clinical Labs. The Commission ordered that the union must amend its application to propose a method for conducting the ballot that would be fair, efficient, and likely to facilitate an accurate expression of the employees' wishes. The Commission set a deadline for the union to resubmit its application, should it choose to do so.

Application by Health Services Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established