Health Services Union v Integrated Clinical Oncology Network Pty Ltd T/A Icon Cancer Centre

[2024] FWC 923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Health Services Union
v

Integrated Clinical Oncology Network Pty Ltd T/A ICON Cancer Centre

(B2024/420)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 10 APRIL 2024

Proposed protected action ballot of employees of Integrated Clinical Oncology Network 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 Integrated Clinical Oncology Network Pty Ltd (ICON or Employer).

On 9 April 2024, the Respondent advised that it did not object to the application subject to confirmation of there being an extended notice period of five (5) working days in relation to the proposed forms of industrial action. The HSU, in effect, accepted that there were the relevant exceptional circumstances and agreed to that amendment.

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 Elizabeth McDonald, Industrial Organiser, 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 ICON, 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 Australian Electoral Commission (AEC).

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 24 May 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

Pursuant to section 443(5) of the Act, I am satisfied that there are relevant exceptional circumstances justifying the period of written notice referred to in section 414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified five (5) working days as the minimum period of written notice required in respect of the industrial action taken by employees arising from the ballot questions in clause 5 of the Order.

I observe that the Commission raised some concerns about 2 of the ballot questions initially proposed and that these were amended by leave of the Commission. I am satisfied that revised questions 8 and 9 in clause 5 of the Order represent industrial action for present purposes and enable the application to be granted in the amended form.

An Order has been separately issued in PR773354.

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 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.

DEPUTY PRESIDENT

[1] This is, in effect, thirty (30) working days from the date of the Order, as confirmed by the parties, which is the minimum period required by the AEC to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) lodged an application with 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 Integrated Clinical Oncology Network Pty Ltd (ICON). The application was made to allow the HSU to conduct a ballot among its members for proposed protected actions, which could include industrial action. The Respondent, ICON, did not object to the application but requested an extended notice period for the industrial action. The HSU accepted this amendment, and the matter was decided on the papers without a hearing.

The legal issues before the Deputy President involved determining whether the HSU had met the requirements of section 443 of the Act for a protected action ballot order. This required a demonstration that the HSU had been genuinely attempting to reach an agreement with the employer, that there was a notification time for the proposed agreement, and that the conditions for the ballot were met. The Deputy President also had to consider whether the proposed notice period for the industrial action was justified under the exceptional circumstances outlined in section 443(5) of the Act.

The Deputy President found that the HSU had genuinely attempted to reach an agreement with ICON, as evidenced by the declaration and the steps outlined by the HSU. The notice period for the proposed agreement was confirmed, and all requirements under section 443(1) of the Act were satisfied. The extended notice period of five working days for the industrial action was justified by the exceptional circumstances, which were accepted by both parties. The Deputy President issued an order for the ballot to be conducted by the Australian Electoral Commission, with voting to close by 24 May 2024. Certain ballot questions were amended with the leave of the Commission to ensure they represented industrial action. The matter will proceed to a compulsory conciliation conference under section 448A of the Act, where the parties will be required to attend and negotiate meaningfully.

The Deputy President issued an order granting the application for a protected action ballot, with the specified ballot period and extended notice period for industrial action. The order also mandated that the parties attend a compulsory conciliation conference and be prepared to negotiate. This decision ensured that the HSU could proceed with the ballot and that the parties were directed to engage in meaningful negotiations to resolve the dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established