Health Services Union v Global Diagnostics (Australia) Pty Ltd T/A Apex Radiology Summary

[2024] FWC 1315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Global Diagnostics (Australia) Pty Ltd T/A Apex Radiology

(B2024/558)

COMMISSIONER MIRABELLA

MELBOURNE, 20 MAY 2024

Proposed protected action ballot of employees of Global Diagnostics (Australia) Pty Ltd trading as Apex Radiology.

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 Global Diagnostics (Australia) Pty Ltd trading as Apex Radiology (Employer).

On 17 May 2024, the Employer advised the Fair Work Commission that they do not object to this 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 Jason Walters, Private Sector Co-Ordinator, setting out the steps taken by the Applicant in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with the Employer, 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 ballot is to be conducted by Vero Engagement And Voting Solutions Pty Ltd (Vero). Vero 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 7 June 2024.[1] This also establishes the ballot period for the purposes of s.448A(2) of the Act.

An order has been separately issued in PR775162.

This matter will proceed to a s.448A compulsory conciliation conference before me on a date and time to be fixed. I will issue an order requiring the attendance of all bargaining representatives for 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

[1] This is, in effect, fourteen (14) working days from the date of the order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Global Diagnostics (Australia) Pty Ltd trading as Apex Radiology. The application was made to facilitate a proposed industrial action ballot, a process through which employees vote on whether to engage in protected industrial action, such as a strike, if a resolution cannot be reached through bargaining. The employer did not object to the application. The Commission determined the matter based on the written submissions and did not hold a hearing.

The legal issues for the Commission to decide included whether the HSU had genuinely attempted to reach an agreement with the employer, whether the proposed agreement had a notification time, and if the requirements under section 443(1) of the Fair Work Act had been met. Additionally, the Commission had to determine the closing date for the voting period of the ballot, as stipulated under section 443(3)(c) of the Act. Vero Engagement And Voting Solutions Pty Ltd was identified as the authorised agent to conduct the ballot.

The Commission concluded that the HSU had genuinely tried to reach an agreement with the employer, and the requirements under section 443(1) of the Fair Work Act were met. The closing date for voting was set as 7 June 2024, which also established the ballot period under section 448A(2) of the Act. This date was effectively fourteen working days from the issuance of the order. The matter was scheduled to proceed to a compulsory conciliation conference, where the Commission would issue directions to ensure meaningful negotiations between the parties.

In summary, the Fair Work Commission granted the Health Services Union's application for a protected action ballot order, setting the voting closing date and establishing the ballot period. The matter was set to proceed to a compulsory conciliation conference to facilitate negotiations between the union and the employer.

Health Services Union v Global Diagnostics (Australia) Pty Ltd T/A Apex Radiology

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established