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

[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.

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]

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

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

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.

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.

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

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.

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.

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.

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.

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

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.

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

The case of The Association of Professional Engineers, Scientists and Managers, Australia v Alfred Health involved an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) under section 437 of the Fair Work Act 2009 for protected action ballot orders. The application concerned employees who are biomedical engineers working for 14 Victorian health care employers. These employers, subject to a Single Interest Employer Authorisation (SIEA) issued by the Fair Work Commission, have appointed the Victorian Hospitals Industrial Association as their bargaining representative. The employees to be balloted are biomedical engineers, aligned with the SIEA's scope.

The legal issues in this case revolved around the requirements and processes outlined in the Fair Work Act for protected action ballots. Specifically, the court had to determine whether the application met the statutory criteria for issuing a ballot order, including the notification time for the proposed agreement, and whether all procedural requirements were satisfied. Given the multi-employer nature of the application, the court also had to consider whether treating the application as multiple separate applications was appropriate under section 437A of the Act.

Upon reviewing the material submitted, including the declaration by the APESMA's Victorian Director, the court found that all requirements for a ballot order were met. The Employers indicated they would not object to the application, subject to an amendment to the ballot questions. The APESMA agreed to the amendment, leading the court to determine the matter on the papers without a hearing. The court confirmed that the ballot period, as specified in the application, was consistent with the statutory requirements. Consequently, the court issued separate orders for each employer, setting the closing date for voting as 21 June 2024, which is ten working days from the date of the order.

In conclusion, the court granted the APESMA's application for protected action ballot orders for the biomedical engineers working for the 14 Victorian health care employers. Each employer received an individual order specifying the ballot period and procedures. The matter will proceed to a compulsory conciliation conference to be conducted by another member of the Commission, with directions likely to be issued to ensure meaningful negotiations.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established