Health Services Union v Genesis Cancer Care WA Pty Limited T/A GenesisCare
[2022] FWC 3065
•18 NOVEMBER 2022
| [2022] FWC 3065 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Health Services Union
v
Genesis Cancer Care WA Pty Limited T/A GenesisCare
(B2022/1721)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 18 NOVEMBER 2022 |
Proposed protected action ballot of employees of Genesis Cancer Care WA Pty Limited T/A GenesisCare; GenesisCare Hollywood Pty Ltd; and CS Harper Pty Ltd, JM Heywood Pty Ltd, Jerome M Freund Pty Ltd and Dr Lim Pty Ltd trading as Perth Radiation Oncology.
On 14 November 2022, the Health Services Union (the Applicant) made an application under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order in relation to certain employees of Genesis Cancer Care WA Pty Limited T/A GenesisCare, GenesisCare Hollywood Pty Ltd, and CS Harper Pty Ltd, JM Heywood Pty Ltd, Jerome M Freund Pty Ltd and Dr Lim Pty Ltd trading as Perth Radiation Oncology (collectively the Respondent).
The matter was allocated to my Chambers on 16 November 2022 and heard on 17 November 2022. The application was properly made. There had been a ‘notification time’ in relation to the proposed agreement and there was no dispute that the Respondent and the Australian Electoral Commission received the application within the requisite statutory period. I reserved my decision, informing the parties that they would be notified shortly thereafter.
Briefly stated, I have concluded that the Applicant has been, and is, genuinely trying to reach agreement with the Respondent, and I am further satisfied that the requirements in ss 443(1) and 437 of the Act have been met.
An Order therefore issues concurrently in PR748056.
Context
By way of context, the Respondent purports to be the largest provider of radiotherapy services in Western Australia, having treated approximately 6,200 radiation oncology patients in the last financial year, across seven public and private sites.[1]
The Applicant and Respondent have been negotiating for an enterprise agreement since June 2021. There is currently no enterprise agreement in place.
The Respondent accepts that bargaining has been progressing with the Applicant with the first bargaining meeting taking place on 15 October 2021.[2] It appears uncontroversial that the Respondent and Applicant agreed to hold weekly bargaining meetings of one and a half hours in duration from 17 November to 22 December 2021 (six meetings in total) and a further eight fortnightly meetings scheduled from January 2022 to May 2022. All meetings were said to be one and a half hours in total, except for a five-hour meeting in February 2022.
The Respondent’s latest bargaining proposal was made to the Applicant on 10 November 2022, and while the Respondent notes that it has not received any formal response from the Applicant to the 10 November offer, the Applicant did advise the Respondent verbally during discussions that its members were not satisfied with the offer proposed.[3]
The Respondent submitted that it advised the Applicant that it would be commencing the Access Period on 21 November 2022 with a vote to take place from 28 November to 4 December 2022.[4]
It is not in dispute that the Applicant has been, and is, genuinely trying to reach agreement and that the multiple employers are ‘single interest employers’.
However, initially, the Respondent objected to the application on the grounds:
a) the Applicant has not adequately identified, as required by s 437(3)(a) of the Act, the employee(s) or groups of employees that would be subject to the protected action ballot order; and
b) the types of industrial action proposed in the application, unless modified, would inevitably lead to a requirement to approach the Commission with applications under ss 424 or 426 of the Act.
While the Respondent took no issue with question 9 in the draft order provided with the Applicant’s application, before the hearing I placed the parties on notice regarding an issue with question 9. That question read:
The HSU to provide GenesisCare 14 days’ notice before commencing any protected action to allow GenesisCare to ensure safe rostering and prioritising patient safety? Yes/No
I asked that the parties consider whether this question was better placed as a consideration under s 443(5) of the Act. My preliminary view was that the question did not appear on its face, to specify the nature of the proposed industrial action but rather spoke of the provision of notice prior to taking any proposed industrial action.
Legislative Framework
Pursuant to s 443, the Commission is obliged to issue a protected ballot order only in the following circumstances:
443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
Section 437 of the Act relevantly provides as follows:
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi‑enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
Consideration
Having received the objections of the Respondent and cognisant of the Respondent’s objection in respect to the inadequate identification of the employees (see s 437(3)(a) of the Act), the Applicant sought to file amended applications and draft orders under s 586 of the Act. This course was not opposed by the Respondent, and on the receipt of the third amended application and draft order, the Respondent confirmed that it no longer pressed its objection under s 437(3)(a) of the Act. The amendments to the application and draft order were permitted, given the Respondent’s lack of objection to the same, and considering the materials filed.
In respect of its second objection regarding the likelihood of bring applications under ss 424 and 426, the Respondent conceded its objection was not necessarily relevant to the determination of the application under ss 437 and 443. I agree with that proposition, noting the observations made in Transport Workers’ Union of Australia v KINETIC (Melbourne) Pty Ltd T/A Kinetic.[5]
Conclusion
I have considered all the material before me, including the declaration of Mr Adrian Barrett of the Applicant, setting out the steps taken by the Applicant in bargaining with the Respondent and confirm that it has been, and is, genuinely trying to reach agreement with the Respondent. As noted, I am satisfied that there is a notification time in relation to the proposed agreement, there is a valid application made pursuant to s 437, and that all the requirements in s 443(1) of the Act have been met. Accordingly, and as stated, I am obliged to issue an order in this matter.
Extension of the notice period
In respect to the written notice period referred to in s 414(2)(a) of the Act, the Applicant submitted that its members’ main concern was that of patient safety and on that basis, it did not oppose an extension of the notice period under s 443(5) for a period up to seven working days.
Section 443(5) of the Act provides the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. The onus is on the Respondent to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance.
The approach to exceptional circumstances in this context was discussed by Vice President Lawler in CEPU v Australian Postal Corporation,[6] a decision which concerned an equivalent provision of the Workplace Relations Act 1996 (Cth)[7]:
[10] In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.
The Vice President went on to state:
[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices [sic] period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.
[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose.
To warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice. This requires a weighing up of the opportunity for the Respondent to take appropriate defensive action against the diminution of the effectiveness of the Applicant’s members’ bargaining power that is contemplated by the scheme of the Act[8]. In that light, it would not be a relevant exercise of discretion to grant additional notice simply to allow the employer to neutralise the impact of the industrial action[9].
However, where the interests beyond that of the immediate parties may be significantly impacted by the taking of industrial action, the tendency is for an extension of the notice period to be provided[10].
The Respondent observed there was broad agreement between it and the Applicant that there are exceptional circumstances. It noted that it provided treatment to cancer patients with life threatening illness in both the private and public health spheres. The Respondent submitted that the withdrawal of that treatment may cause significant harm and endanger the lives of patients, such that it would be appropriate for seven working days’ notice to be given.
Given the submissions of the parties, I have found that exceptional circumstances exist within the meaning of s 443(5) of the Act, which justify the extension of the notice period up to seven working days. I have therefore extended the notice period accordingly.
DEPUTY PRESIDENT
Appearances:
Ms Stephanie Smith on behalf of the Applicant the Health Services Union.
Mr Michael Roucek on behalf of the Respondent GenesisCare & Anor.
Hearing details:
Perth (Video)
17 November 2022.
[1] Respondent’s Response to the Application, [4].
[2] Ibid [7].
[3] Ibid [9].
[4] Ibid.
[5] [2022] FWC 536, [17]-[18].
[6] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848.
[7] Workplace Relations Act 1996 (Cth), s 463(5).
[8] Australian Federation of Air Pilots v Alliance Airlines Pty Ltd T/A Alliance Airlines[2017] FWC 6748, [12].
[9] Ibid.
[10] Transport Workers’ Union of Australia [2012] FWA 133; Transport Workers’ Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v the Chief Executive of the ACT Internal Omnibus Network (ACION) on behalf of the Australian Capital Territory[2010] FWA 3355.
Printed by authority of the Commonwealth Government Printer
<PR748055>
0
3
0