The Association of Professional Engineers, Scientists and Managers, Australia v Alfred Health

[2024] FWC 1467

[2024] FWC 1467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Association of Professional Engineers, Scientists and Managers, Australia
v

Alfred Health & Others

(B2024/722)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 6 JUNE 2024

Proposed protected action ballots of employees of Alfred Health and 13 other Victorian health care employers.

1. This decision concerns an application by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for protected action ballot orders in relation to certain employees of the employers who are subject to a Single Interest Employer Authorisation (SIEA) issued by the Fair Work Commission (Commission) on 2 April 2024.[1] The SIEA has been given in the context of a proposed multi-enterprise agreement.[2]

1. The ballot application relates to Victorian health employers that are authorised to bargain together via the SIEA covering 14 employer respondents (collectively, the Employers).

1. Each of these Employers has appointed the Victorian Hospitals Industrial Association (VHIA) as their bargaining representative.

1. The group of employees to be balloted at each employer are employees engaged as Biomedical Engineers. This is consistent with the scope of coverage of the SIEA.

1. On 5 June 2024, the Commission was advised that the Employers would not object to the application subject to an amendment to the questions in the draft order. On 6 June 2024, APESMA confirmed it was agreeable to the proposed amendment to questions 1, 4 and 13 of the draft order. The application has been amended accordingly.

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

1. Section 437A of the Act provides, in effect, that where an application is made under s.437 in relation to a multi-enterprise agreement and incudes multiple employers (as in this case), the Commission is obliged to treat the application as if multiple applications – one for each employer – has been made. I have done so here.

1. On the basis of the material before me, including the declaration of Scott Crawford, Victorian Director, setting out the steps taken by the APESMA in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, 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 ballots are 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.

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 in each case is 21 June 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. The Orders properly reflect all of the requirements of s.443(3) of the Act.

1. An Order has been issued in relation to each Employer. A full list of Employers and the Orders issued is attached as Appendix A to this Decision.

1. 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

Printed by authority of the Commonwealth Government Printer

<PR775692>

Appendix A

List of Employers to which this decision relates:

Employer name	Short name	Print number of protected action ballot order
Alfred Health	AH	775694
Austin Health	Austin	775695
Barwon Health	BH	775696
Eastern Health	EH	775697
Goulburn Valley Health	GVH	775698
Melbourne Health	MH	775699
Monash Health	Monash	775700
Northern Health	NH	775701
Peter MacCallum Cancer Institute	PMCC	775702
Royal Children's Hospital	RCH	775703
Royal Women's Hospital	RWH	775704
Western Health	WH	775705
Latrobe Regional Health	LRH	775706
South West Healthcare	SWH	775707

[1] B2024/161 (PR772756).

[2] Within the meaning of s.172(3) of the Act.

[3]This is, in effect, ten (10) working days from the date of the Order, and is the date sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR775692>