Health Services Union of Australia Victoria No 1 Branch v Clinical Laboratories Pty Ltd
[2025] FWC 333
•6 FEBRUARY 2025
| [2025] FWC 333 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Health Services Union of Australia Victoria No 1 Branch
v
Clinical Laboratories Pty Ltd
(B2025/205)
| COMMISSIONER JOHNS | MELBOURNE, 6 FEBRUARY 2025 |
Proposed protected action ballot of employees of Clinical Laboratories Pty Ltd
The Health Services Union of Australia Victoria No 1 Branch (trading as the Health Workers Union) (HWU or Applicant) made an application to the Fair Work Commission (Commission) under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Clinical Laboratories Pty Ltd (trading as Australian Clinical Laboratories) (ACL or Employer).
The employees of ACL to be balloted are employed in the classifications of pathology collectors, couriers, clerical staff, laboratory assistants, cleaners, store persons, handypersons and maintenance staff in Victoria. Presently those employees are covered by the Australian Clinical Labs (Victoria) Pathology Enterprise Agreement 2020-2024. That agreement passed its nominal expiry date on 5 June 2024.
The application was initially made by the HWU at 5:14 pm on 3 February 2025 (Original Application). The Original Application was not supported by a Form34B Statutory Declaration.
At 11:06 am on 4 February 2025, ACL notified the Commission that it objected to the application. ACL provided an address for service.
At 12:27 pm on 4 February 2024, the HWU filed an amended application with the Commission (Amended Application). The Amended Application was accompanied by a Form F34B Statutory Declaration, declared by Raymond Collins, Private Pathology Industrial Organiser employed by the Health Workers’ Union. Mr Collins attested to the HWU genuinely trying to reach an agreement with ACL. ACL did not dispute the contention.
At 4:40 pm, on 4 February 2024, ACL notified the Commission that it objected to both the Original Application and the Amended Application. ACL advanced several grounds of objection.
At 4:56 pm, on 4 February 2024 the matter was allocated to my Chambers.
Noting that the Commission must, as far as practicable, determine an application within 2 working days,[1] I listed the matter for hearing at 3.00 pm, on 5 February 2025.
Directions were issued requiring the HWU to respond to ACL’s objections ahead of the scheduled hearing. The HWU did so at 12.00 pm on 5 February 2025.
At the hearing:
a) The HWU was represented by Mr Collins.
b) The ANMF were represented by James Lauchland.
c) ACL was represented by Andrew Berry, ACL’s National IR Manager.
At the commencement of the hearing, ACL made an application for me to recuse myself from hearing the applications on the basis of apprehended bias.[2] For the reasons given in transcript[3] ex tempore I declined to recuse myself. I then proceed to hear the substantive applications.
Summary of ACL’s Submissions
The Respondent objected to the Original Application on the following grounds:
(a)The Applicant is statutorily barred from balloting the employees that it proposes to ballot;
(b)The Applicant has been placed into administration by the Federal Court of Australia and the Applicant proposes a non-AEC ballot agent. The proposed draft orders require the Respondent to provide the non-AEC ballot agent with all employees that are covered by the Proposed Enterprise Agreement. There are serious questions to be tried in respect of the conduct of the Applicant that need to be resolved by the Federal Court. The Respondent objects to providing this information to a non-AEC ballot agent;
(c)Ballot questions fail to describe the industrial action in such a way that employees are capable of responding to them;
(d)Ballot questions are not sufficiently clear so employees can make an informed choice; and
(e)Ballot questions fail to minimize the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot.
In respect of the Amended Application, the Respondent objected on the following grounds:
(a)Leave has not been sought by a Member of the Commission to file the Amended Application;
(b)The Applicant has been placed into administration by the Federal Court of Australia and the Applicant proposes a non-AEC ballot agent. The proposed draft orders require the Respondent to provide the non-AEC ballot agent; with all employees that are covered by the Proposed Enterprise Agreement. There are serious questions to be tried in respect of the conduct of the Applicant that need to be resolved by the Federal Court. The Respondent objects to providing this information to a non-AEC ballot agent.
(c)The Application remains fatally defective in that the date specified is likely to be less than 10 working days from the date of the Order;
(d)The Ballot questions fail to describe the industrial action in such a way that employees are capable of responding to them;
(e)The Ballot questions are not sufficiently clear so employees can make an informed choice; and
(f)The Ballot questions fail to minimize the possibility that the industrial action eventually taken will fall outside the action authorized by the ballot.
ACL’s complaints about the questions proposed to be balloted centred around Mr Berry’s fixation on the use of the word “or” in most sentences.
Summary of HWU’s Submissions
At the hearing, the HWU relied entirely upon the Amended Application. ACL complained that the Amended Application was not served in accordance with the Rules of the Commission. However, noting that the Amended Application was emailed directly to the CEO of ACL, I was satisfied that no prejudice was caused to ACL by the defect in service and waived compliance with the Rules.[4]
The HWU responded to ACL’s objections submitting that there is no statutory bar preventing it from balloting employees, as the appointment of an Interim Administrator does not restrict the Applicant from performing its duties under the Fair Work (Registered Organisations) Act 2009. The Applicant submitted that the Federal Court proceedings do not impede its ability to represent its members in enterprise bargaining or industrial action. The contentions advanced by the HWU in this regard were manifestly correct. Sensibly, Mr Berry did not press ACL’s objection on this ground.
Regarding the use of a non-AEC ballot agent, the Applicant submitted that such agents are commonly used, with Fair Vote Services Pty Ltd (Fair Vote) being a registered and authorised ballot agent of the Commission. ACL objected to providing some employee details to Fair Vote. I was satisfied that for the most part the information sought to be provided by the HWU and ACL to Fair Vote would reasonably assist it to compile a roll of votes
In relation to the date of the Order, the HWU agreed with my suggestion that the time be extended to 14 days from the date of any Order.
In response to the concerns about the clarity of the ballot questions, the Applicant contended that the questions provide clear descriptions of the proposed industrial actions, and allowing employees to make an informed decision. However, the HWU (at my suggestion) agreed to amend the questions to address the concerns raised by ACL. The amended form of questions is included in the Order separately being issued. Essentially, where the word “or” appeared in the draft Orders, in the final Orders, the questions were broken up into two, sometimes more, discrete questions.
Having addressed each of ACL’s objections I asked Mr Berry “Is there any other basis upon which I should not grant the Order.”[5] Mr Berry replied “No Commissioner, not to the best of my knowledge and belief.”[6] I continued, “Alright then, so in those circumstances is there anything further you want to say about the matter Mr Berry?”[7] Mr Berry replied “No.”[8]
Conclusion
On the basis of the material before me, including the declaration made by Mr Collins setting out the steps taken by the HWU in bargaining with ACL and that it has been, and is, genuinely trying to reach agreement with ACL, 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 Fair Vote Services Pty Ltd. Fair 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.
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 20 February 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR784053.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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.
COMMISSIONER
Appearances:
Mr Raymond Collins for the Applicant’
Mr Andrew Berry for the Respondent
Hearing details:
3:00 pm on 5 February 2025
Video by Microsoft Teams
[1] Section 441 FW Act.
[2] Transcript PN12.
[3] Transcript PN62-80.
[4] Transcript PN158.
[5] Transcript PN386.
[6] Transcript PN387-389.
[7] Transcript PN390.
[8] Transcript PN391.
Printed by authority of the Commonwealth Government Printer
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