Health Services Union v Epworth Medical Imaging Pty Ltd

[2023] FWC 2981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union

Epworth Medical Imaging Pty Ltd

(B2023/1251)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 15 NOVEMBER 2023

Proposed protected action ballot of employees of Epworth Medical Imaging Pty Ltd

This is an application by the Health Services Union (HSU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Epworth Medical Imaging Pty Ltd (Epworth or Employer).

On 15 November 2023, the Commission was advised that Epworth, in effect, 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 Lindsay Ryan, HSU Assistant Branch Secretary, 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 Epworth, 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 the TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act[1] 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 6 December 2023.[2] This also established the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR768277.

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 involved 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.

DEPUTY PRESIDENT

[1] TrueVote Pty Ltd [2023] FWC 1446.

[2] This is, in effect, fifteen (15) working days from Commencement Date of the Order, as sought by the Applicant.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) applied to the Fair Work Commission (FWC) for a protected action ballot order concerning certain employees of Epworth Medical Imaging Pty Ltd. The HSU sought the order under section 437 of the Fair Work Act 2009, seeking to allow employees to vote on proposed industrial action. The application was made after the HSU had engaged in good faith bargaining with Epworth but had not reached an agreement. The Commission determined the matter on the papers after Epworth did not object to the application. The Commission found that the HSU had satisfied all the requirements under section 443(1) of the Act, including the notification period for the proposed agreement.

The primary legal issue for the Commission to decide was whether the HSU had met the criteria for a protected action ballot under section 437 of the Act. This involved assessing whether the HSU had genuinely tried to reach an agreement with Epworth and if the notification period for the proposed agreement had been observed. Additionally, the Commission had to determine the appropriate closing date for the ballot to ensure compliance with section 443(3)(c) of the Act. The eligibility of TrueVote Pty Ltd as a ballot agent was also reviewed to ensure it met the requirements of section 468A of the Act.

The Deputy President concluded that the HSU had met all necessary criteria for a protected action ballot. The Commission was satisfied with the evidence provided by the HSU, including the declaration by Ms. Lindsay Ryan, which demonstrated the union's good faith efforts in bargaining. The Commission set the closing date for the ballot as 6 December 2023, which provided a sufficient period for voting as required by the Act. Furthermore, TrueVote was confirmed as an eligible ballot agent. The Commission issued a separate order in PR768277 and assigned the matter for a compulsory conciliation conference under section 448A of the Act to facilitate further negotiations between the parties.

The final orders included the approval of the ballot and the appointment of TrueVote as the ballot agent. The Commission also set the ballot closing date and mandated a compulsory conciliation conference to encourage continued negotiations between the HSU and Epworth. This decision ensures that the employees have the opportunity to vote on the proposed industrial action in an orderly and legally compliant manner.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established