Health Services Union v Qscan Group Holdings Newco Pty Ltd T/A North Coast Radiology Group

[2023] FWC 1900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Health Services Union
v

Qscan Group Holdings Newco Pty Ltd T/A North Coast Radiology Group

(B2023/776)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 1 AUGUST 2023

Proposed protected action ballot of employees of Qscan Group Holdings Newco Pty Ltd

This is an application by the Health Services Union (HSU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Qscan Group Holdings Newco Pty Ltd T/A North Coast Radiology Group (Qscan or Employer).

A previous application (B2023/766) was filed on 28 July 2023 and subsequently discontinued by the Applicant due to uncertainty around service upon the Ballot Agent as required by s.440 of the Act and to address particular concerns raised by the Employer.

On 1 August 2023, the Commission was advised that Qscan, in effect, did not object to the current 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 Ms Elizabeth McDonald, HSU 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 Qscan, 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. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (1 August 2023) has been established by this Commission.[1]

An Order has been separately issued in PR764791.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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 the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU) made an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Qscan Group Holdings Newco Pty Ltd, trading as North Coast Radiology Group (Qscan). The HSU sought to conduct a ballot for protected action in the context of ongoing bargaining with Qscan. A previous application, B2023/766, was withdrawn due to concerns about service upon the ballot agent and issues raised by Qscan. However, the current application was made on 1 August 2023, and Qscan did not object to the application. Consequently, the matter was determined by the Fair Work Commission on the papers without a hearing.

The legal issues before the Commission included whether the HSU had genuinely been attempting to reach an agreement with Qscan and whether all requirements under section 443(1) of the Act had been fulfilled. The Commission considered the declaration of Ms Elizabeth McDonald, the HSU Organiser, which outlined the steps taken in bargaining with Qscan. The declaration provided evidence that the HSU was genuinely attempting to reach an agreement and that a notification period existed for the proposed agreement. Based on the material before the Commission, it was satisfied that all statutory requirements were met.

The Commission granted the HSU's application for a protected action ballot order. The ballot was to be conducted by the Australian Electoral Commission, and a ballot period of 30 working days from the date of the Order (1 August 2023) was established. Additionally, the matter was assigned to another Member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act. Directions were also likely to be issued to ensure that the parties attended the conference prepared for meaningful negotiations.

The Fair Work Commission issued an Order under section 437 of the Fair Work Act 2009, permitting the Health Services Union to conduct a ballot for protected action among certain employees of Qscan Group Holdings Newco Pty Ltd. The ballot period was set for 30 working days from the date of the Order, and a compulsory conciliation conference was scheduled to ensure meaningful negotiations between the HSU and Qscan.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established