Health Services Union Victoria No. 3 Branch T/A the Victorian Allied Health Professionals Association v RSL Care RDNS Limited T/A Bolton Clarke Summary

[2024] FWC 1611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Application for a protected action ballot order

Health Services Union Victoria No. 3 Branch T/A The Victorian Allied Health Professionals Association
v

RSL CARE RDNS Limited T/A Bolton Clarke

(B2024/783)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 20 JUNE 2024

Proposed protected action ballot of employees of RSL CARE RDNS Limited T/A Bolton Clarke

This is an application by the Health Services Union Victoria No. 3 Branch T/A The Victorian Allied Health Professionals Association (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 RSL CARE RDNS Limited T/A Bolton Clarke (Bolton Clarke or Employer).

On 19 June 2024, the Commission was advised that the Employer 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 Lindsay Ryan, Assistant 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 Bolton Clarke, 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 TrueVote Pty Ltd (TrueVote). TrueVote 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 11 July 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking certain forms of industrial action set out in questions 12 and 13 of Clause 5 the Order made by the Commission. The default period of three working days written notice will apply to the remaining forms of action arising from the ballot question.

An Order has been separately issued in PR776216.

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, fifteen (15) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union Victoria No. 3 Branch T/A The Victorian Allied Health Professionals Association (HSU or Applicant) made an application under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of RSL CARE RDNS Limited T/A Bolton Clarke (Bolton Clarke or Employer). The union sought to conduct a ballot for potential industrial action due to the lack of progress in bargaining for a new enterprise agreement. The application was made on 19 June 2024, and the employer did not object to the application.

The key legal issue before the Fair Work Commission was whether the union had satisfied the statutory requirements for holding a protected action ballot. Specifically, the Commission needed to determine if the union had genuinely tried to reach agreement with the employer and if there was a notification time in relation to the proposed agreement. The Commission also had to decide whether there were exceptional circumstances justifying an extended period of written notice for certain forms of industrial action.

The Commission found that the union had genuinely tried to reach agreement with Bolton Clarke and that there was a notification time in relation to the proposed agreement. The Commission was satisfied that all requirements under section 443(1) of the Act had been met. The Commission also determined that the ballot period would close on 11 July 2024, which established the ballot period for the purpose of section 448A(2) of the Act. Additionally, the Commission found that there were relevant exceptional circumstances justifying an extended period of written notice for certain forms of action arising from the ballot question. The default period of three working days' written notice would apply to the remaining forms of action.

The Commission issued an Order approving the ballot and setting the closing date for voting. The Commission also determined that the matter would be assigned to another Member for a compulsory conciliation conference. This Member would issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference, with Directions likely to be issued to ensure that the parties attend ready to conduct meaningful negotiations.

Health Services Union Victoria No. 3 Branch T/A the Victorian Allied Health Professionals Association v RSL Care RDNS Limited T/A Bolton Clarke

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established