Health Services Union v Melbourne Pathology Pty Ltd Summary

[2024] FWC 1111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Health Services Union
v

Melbourne Pathology Pty Ltd

(B2024/491)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 29 APRIL 2024

Application to extend the 30 day period in relation to B2024/224.

This matter concerns the declaration of the result of a protected action ballot (PR772509) held in matter B2024/224 and declared on 4 April 2024.

The Health Services Union (HSU or Applicant) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Melbourne Pathology Pty Ltd (Employer) has advised the Commission it has no objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible HSU members employed by the employer be extended by a further 30 days.

This order will operate on and from 29 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<774327>

CaseChat Overview and Summary

In the Fair Work Commission, the Health Services Union (HSU) applied for an extension of the 30-day period during which industrial action could be undertaken following the outcome of a protected action ballot. The application was made against Melbourne Pathology Pty Ltd (MPP), with the employer not opposing the application. The case centred on whether the statutory conditions for extending the authorisation period for industrial action, as set out in section 459(3) of the Fair Work Act 2009, were satisfied. The primary issue was whether the Commission could lawfully extend the period and, if so, whether this extension should be granted.

The Commission examined the statutory prerequisites for extending the authorisation period. These included the necessity for an application from the applicant of the ballot, and that the period had not been previously extended. Given that the HSU had made the application and the period had not been extended before, the Commission found that these conditions were met. The employer's lack of opposition was also noted. The Deputy President concluded that the application should be approved because it fulfilled the statutory criteria and the employer did not contest the extension.

Following this analysis, the Deputy President granted the application, extending the 30-day period for the commencement of protected industrial action for eligible HSU members employed by MPP by an additional 30 days. This extension was effective from 29 April 2024, in line with the application's request. The decision was made under the authority of section 459(3) of the Fair Work Act, ensuring the extension complied with the legislative framework.

The final order extended the authorisation period for industrial action by the HSU, allowing the union to continue its efforts to resolve the dispute with MPP. This extension provided additional time for negotiations and potentially avoided immediate industrial action, offering a window for resolution before the extended period concluded.

Health Services Union v Melbourne Pathology Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established