Health Services Union v Tas IVF Pty Ltd

[2024] FWC 2120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Tas IVF Pty Ltd

(B2024/1009)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 9 AUGUST 2024

Proposed protected action ballot of employees of Tas IVF 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 Tas IVF Pty Ltd (Tas IVF or Employer).

On 8 August 2024, the Commission was advised that the Employer, in effect, did not object to the 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 Tammy Munro, Acting State Secretary, 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 Tas IVF, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 23 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR778155.

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 in 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, 14 days from the making of the Order as sought in the application.

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, seeking a protected action ballot order concerning certain employees of Tas IVF Pty Ltd. The HSU, acting as the bargaining representative, aimed to conduct a ballot for proposed protected action, which involved industrial action by the employees. Tas IVF Pty Ltd, the employer, did not object to the application. The Deputy President, Wright, determined the matter based on the submitted documents without a hearing.

The legal issues before the court involved whether the HSU had fulfilled all the requirements under section 443(1) of the Act to conduct a protected action ballot. These requirements included demonstrating that the union had genuinely attempted to reach an agreement with Tas IVF Pty Ltd, and ensuring that all procedural steps were followed correctly. The HSU's declaration by Tammy Munro, the Acting State Secretary, outlined the bargaining process and confirmed the union's efforts to reach an agreement.

The Deputy President found that the HSU had met all the necessary criteria for the ballot, including the notification period stipulated in section 443 of the Act. The ballot was to be conducted by Democratic Outcomes Pty Ltd (CiVS), which was approved under section 468A of the Act as an eligible agent. The Commission set 23 August 2024 as the closing date for voting, effectively 14 days from the issuance of the order. Additionally, the matter was to proceed to a compulsory conciliation conference under section 448A of the Act, to be overseen by another member of the Commission.

The orders included the approval of the ballot date and the assignment of another Commission member to conduct the conciliation conference, ensuring both parties were prepared for meaningful negotiations. The final orders were issued separately under PR778155.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established