Health Services Union v Adelaide Radiotherapy Centre Pty Ltd T/A Genesiscare South Australia

[2023] FWC 388

[2023] FWC 388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Adelaide Radiotherapy Centre Pty Ltd T/A Genesiscare South Australia

(B2023/113)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 FEBRUARY 2023

Proposed protected action ballot of employees of Adelaide Radiotherapy Centre Pty Ltd Trading As Genesiscare South Australia

1. This is an application by the Health Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Adelaide Radiotherapy Centre Pty Ltd T/A Genesiscare South Australia (the Respondent).

1. The Respondent initially advised my Chambers that it wished to clarify the group of employees to be balloted and proposed alternate wording for the draft Order. Correspondence from both parties to my Chambers then followed containing a number of proposals. Ultimately, I caused correspondence to be sent to the parties outlining wording to describe the group of employees to be balloted and stating that unless the Respondent outlined a statutory basis for its objection addressing s.443 of the Act and a desire to be heard in relation to it, I would proceed to determine the Application and make the Order.

1. On 16 February 2023, my Chambers was advised that the Respondent did not oppose the matter being determined on the papers pursuant to the Order proposed. Accordingly, I have decided to determine the matter on the papers without holding a hearing 

1. On the basis of the material before me, including the declaration of Mr William Gordon Elrick of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

1. The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore I appoint CiVS as the protected action ballot agent.

1. An order has been separately issued in PR750653.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR750652>