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

[2023] FWC 1124

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

(B2023/439)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 MAY 2023

Proposed protected action ballot of employees of Adelaide Radiotherapy Centre Pty Ltd

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 (Respondent).

On 11 May 2023, my Associate was advised that the Respondent 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 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.

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.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR761838.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) made an application to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of Adelaide Radiotherapy Centre Pty Ltd T/A Genesiscare South Australia. The application was made on the basis that the HSU had been genuinely trying to reach agreement with the employer, Adelaide Radiotherapy Centre, but had been unable to do so. The FWC was required to decide whether the HSU had met the requirements for a protected action ballot under the Fair Work Act.

The FWC considered the material before it, including the declaration of Mr William Gordon Elrick of the HSU, setting out the steps taken by the HSU in bargaining with Adelaide Radiotherapy Centre and that it had been, and was, genuinely trying to reach agreement with the employer. The FWC was also required to consider whether Democratic Outcomes Pty Ltd trading as CiVS (CiVS) was a fit and proper person to act as the ballot agent for the protected action ballot. The HSU had proposed CiVS as the ballot agent, and this was not opposed by Adelaide Radiotherapy Centre.

The FWC was satisfied that the HSU had met the requirements for a protected action ballot under the Fair Work Act, and that CiVS was a fit and proper person to act as the ballot agent for the ballot. The FWC noted that Mr Michael M Michael, the Managing Director of CiVS, had provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he had relevant experience in conducting protected action ballots. The FWC was satisfied that Mr Michael and CiVS were capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. The FWC also noted that CiVS had agreed to be the protected action ballot agent and that Mr Michael and CiVS were bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

The FWC therefore appointed CiVS as the protected action ballot agent, and an order was separately issued in PR761838. The FWC made no further orders in relation to the HSU's application.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established