Health Services Union v The Hobart Clinic Association Limited T/A the Hobart Clinic

[2023] FWC 3286

[2023] FWC 3286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

The Hobart Clinic Association Limited T/A The Hobart Clinic

(B2023/1347)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 12 DECEMBER 2023

Proposed protected action ballot of employees of The Hobart Clinic Association Limited

1. 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 The Hobart Clinic Association Limited T/A The Hobart Clinic (Hobart Clinic or Employer). 

1. On 8 December 2023, the Commission was advised that Hobart Clinic did not, in effect, object to the Application.[1]

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Desmond Marcenko, Industrial Organiser, HSU, 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 Hobart Clinic, 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.  

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.

1. 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 22 December 2023. This also establishes the ballot period for the purpose of s.448A(2) of the Act. In establishing this period, I have applied the principles set out by the Full Bench in CEPU v Nilsen.[3] Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. Without being definitive, I have had regard to the known circumstances of the parties, the capacity for the ballot agent to conduct a ballot in the period specified and the implications of the requirement to order attendance of all bargaining representatives at, and to conduct, the s.448A compulsory conciliation conference during the ballot period. In this case, the ballot agent has confirmed its capacity to undertake the ballot within the period specified and I have confirmed that a Member of the Commission is available to conduct the conference within the ballot period. In other circumstances, I would have granted a longer ballot period as originally foreshadowed with the parties.

1. The sequence of Clauses 6 to 9 in the proposed order were rearranged to reflect the Commission’s normal drafting practice.

1. An Order has been separately issued in PR769178.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference as indicated above. That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] The Employer confirmed that they did not object to the application but did have concerns with question four regarding safety stating: “it is likely that any notice of intention to take this action in the future would be objected to on that basis, subject to an assessment of what is proposed at the time.”

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[3] [2023] FWCFB 134.

Printed by authority of the Commonwealth Government Printer

<PR769177>