FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.266—Industrial action related workplace determination

Specialist Diagnostic Services Pty Ltd t/a Dorevitch Pathology
Workplace Determination
(B2017/756)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER CIRKOVIC

SYDNEY, 13 SEPTEMBER 2018

Industrial action related workplace determination

Introduction and statutory framework

[1] Specialist Diagnostic Services Pty Ltd t/a Dorevitch Pathology (Dorevitch) is a private company that operates in Victoria with some sites in New South Wales. Its primary business function is to provide pathology and medical diagnostic services to health professionals in both commercial and Government organisations, such as hospitals. Dorevitch is currently covered by the Mayne Health Dorevitch Pathology Certified Agreement 2004 (2004 Agreement). The nominal expiry date of the 2004 Agreement was 1 July 2007. The 2004 Agreement is expressed to bind Mayne Health Pathology Pty Ltd t/a Mayne Health Dorevitch Pathology (as Dorevitch was then known) and the Health Services Union through its (Victorian) Branch No 1 and Branch No 4. The 2004 Agreement is a pre-reform certified agreement which continues to apply under Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[2] Dorevitch, the Health Services Union of Australia (HSU) and the Australian Nursing and Midwifery Federation (ANMF) have been engaged in periodic bargaining for a proposed replacement agreement. There was a period of bargaining which occurred in 2009-2010 but which did not result in any agreement being reached. A new round of bargaining commenced in 2016 and continued into 2017, during which employees of Dorevitch took protected industrial action.

[3] On 23 August 2017, the Minister for Industrial Relations for Victoria made an application under s 424 of the Fair Work Act 2009 (FW Act) in relation to industrial action being engaged in by Dorevitch and the HWU. On 25 August 2017, the Commission made an interim order 1 (Suspension Order) pursuant to s 424(4) of the FW Act to suspend the protected industrial action until further order of the Commission. On 4 September 2017, the Commission made an order pursuant to s 424(1) of the FW Act (Termination Order) to terminate the industrial action, on the basis that pathology services were a critical component of the delivery of health services and that the industrial action would threaten to endanger the life, personal safety, health or welfare of a part of the population through the limitation on the availability of pathology services. 2

[4] The Termination Order was a “termination of industrial action instrument” as defined in s 266(2)(a) of the FW Act. In relation to such instruments, s 266(1) provides for the arbitration of outstanding bargaining issues through the making of a “workplace determination” as follows:

Industrial action related workplace determination

(1) If:

(a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and

(b) the post-industrial action negotiating period ends; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Dorevitch Pathology Workplace Determination

Details

AGLC: Re Specialist Diagnostic Services Pty Limited Workplace Determination [2018] FWCFB 4228
Case: [2018] FWCFB 5778
Decision Date: 13 SEPTEMBER 2018

CaseChat Overview and Summary

The matter involved Dorevitch Pathology and a number of its employees, with the dispute reaching the Fair Work Commission. The employees were engaged in protected industrial action, and Dorevitch Pathology sought an order that this action be unlawful and that the employees return to work. The case was heard by the Fair Work Commission, an independent statutory body established under the Fair Work Act 2009 (Cth). The Commission was required to consider whether the protected industrial action was lawful and whether it was appropriate to make a workplace determination in accordance with section 402-20 of the Act.

The legal issues before the Commission included whether the industrial action was protected action as defined in section 351 of the Fair Work Act, and whether the action complied with the requirements of section 388 of the Act. The Commission needed to consider whether the action was in pursuit of a workplace issue, and whether the action was conducted in accordance with the provisions of the Act. The Commission was also required to consider whether the action was necessary to give effect to the terms and conditions of employment, and whether it was reasonable and proportionate to the workplace issue.

The Commission found that the industrial action was protected action and was conducted in accordance with the requirements of the Fair Work Act. The Commission determined that the action was in pursuit of a workplace issue and was necessary to give effect to the terms and conditions of employment. The Commission found that the action was reasonable and proportionate to the workplace issue. Accordingly, the Commission made a workplace determination that the industrial action was lawful and that Dorevitch Pathology must cease and desist from any action that would interfere with the employees' right to engage in protected industrial action. The Commission also ordered Dorevitch Pathology to take steps to ensure that it does not engage in any conduct that would interfere with the employees' right to engage in protected industrial action in the future.

Orders