Health Services Union v Healthscope Operations Pty Ltd

[2020] FWC 7049

[2020] FWC 7049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Healthscope Operations Pty Ltd
(B2020/862)

COMMISSIONER WILSON MELBOURNE, 24 DECEMBER 2020

Proposed protected action ballot of employees of Healthscope Operations Pty Ltd.

[1] The Heath Services Union, Tasmania Branch trading as the Health and Community Services Union (HACSU) has made an application for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (the Act). The application seeks a ballot to be conducted of its members employed by Healthscope Operations Pty Ltd (Healthscope) engaged as nurses in Healthscope’s Tasmanian hospitals. The employees are bargaining for an enterprise agreement to replace the one presently in operation, the Healthscope – Tasmania – Nurses – Enterprise Agreement 2016-2020 1 the nominal expiry date of which was 30 June 2020.

[2] HACSU is the bargaining representative for the employees in question.

[3] Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within two working days after the application is made. The application was lodged with the Commission on Tuesday, 22 December 2020.

[4] Shortly after lodgement, in response to correspondence from the Commission, Healthscope advised that while it did not object to the making of the proposed Order, sought the Commission exercise its discretion under s.443(5) of the Act to extend the period of written notice for the taking of any protected industrial action authorised by the ballot beyond the standard 3 working days on the basis that exceptional circumstances exist that would justify such an extension. In the usual course, the matter was referred for listing and was received by my Chambers later on Tuesday, 22 December 2020.

[5] Directions were issued to the parties for the filing of short written submissions and a precis of evidence, if any, and the matter was listed for hearing on Thursday, 24 December 2020 at 9 AM.

[6] After the hearing Directions were issued Healthscope withdrew its application for the period of written notice to be extended and in the course of doing so confirmed that it did not otherwise object to HACSU’s application.

[7] In the circumstances, I decided to cancel the listing for a hearing and determine the matter on the papers without holding a hearing.

[8] On the basis of the material before me, including the declaration of Mr C Kennedy, an Industrial Officer 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.

[9] The order issued by the Commission requires that the ballot be conducted by the Australian Electoral Commission and that the “date by which voting in the protected action ballot is to close is no later than 30 working days from the date of this order”. HACSU objected to the closing date making reference to 30 working days.

[10] The context to my decision in this regard is that the draft order within HACSU’s application form made no reference to a ballot closing date, stating only “[Insert date by which voting in the protected action ballot closes]”. When the Commission sought clarification on the subject from HACSU, the Applicant responded with the following;

“The precise date is not known. What occurs after approval of the ballot application is that an applicant union liaises with the AEC in regards to certain dates by which certain documents have to be provided (lists of members etc.) The AEC then proposes a timeline and seeks agreement of the Union applicant to the proposed timeline.

For the purposes of the Order the following is customarily stated:

The date by which the ballot is to close is to be no later than 20 days from the issue of the Order granting a Protected Industrial Action Ballot.”

[11] After receiving this advice, my Associate advised the parties that while being prepared to grant the application and issue the order, due to the Christmas/New Year period I proposed that the order specify that the ballot is to close no later than 30 days after the issuing of an order. HACSU objected to this proposal by stating;

“Our concern is the maximum period allowed is extended the the natural inclination would be to delay conduct of the vote until that time. The process is already ponderously slow and puts our members, who currently wish to take industrial action, at a disadvantage compared to members of the ANMF who we understand have a shorter time frame for completion of the vote. We ask that the 20 day limit be maintained.”

[12] In response, the Commission advised the parties that it would be content to issue an order with a 20 day turn around if HACSU provided written advice to the Commission from the AEC that the ballot may be completed in that period. Further, the parties were advised that if the AEC says it may not, or there is no response from HACSU on the subject by 12 PM, Thursday 24 December 2020, the order will be issued as 30 days.

[13] There has been no communication from the AEC or HACSU on the subject of the closing date of the ballot. There is no evidence before the Commission, beyond the submission referred to above, regarding the potential disadvantage to HACSU members of a 30 working day period for the close of the ballot.

[14] It must first be noted that HACSU commenced its application on Tuesday 22 December 2020 at 1.46 PM. Why the Applicant chose to do so on that day and not earlier, or later, thus avoiding the Christmas/New Year period is not known to the Commission.

[15] However, having commenced the application two working days prior to a period in which there would be several public holidays and office closures, it would be unreasonable for the Commission to not take those factors into account in determining the ballot closing date.

[16] Further context is added by the fact of the COVID-19 Pandemic which led the Commission, upon AEC advice, to adopt a standard practice in March 2020 of providing for a period of 30 working days for the ballot to close, instead of the previous period of 20 working days.

[17] Within this context, the Commission’s Order will issue with a requirement that “[t]he date by which voting in the protected action ballot is to close is no later than 30 working days from the date of this order”.

[18] An order consistent with the foregoing matters has been separately issued in PR725811.

COMMISSIONER

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