DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Specialist Diagnostic Services Pty Ltd T/A Western Diagnostic Pathology; Vetpath Laboratory Services
(B2021/869)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 SEPTEMBER 2021

Proposed protected action ballot of employees of Specialist Diagnostic Services Pty Ltd T/A Western Diagnostic Pathology; Vetpath Laboratory Services.

[1] This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Specialist Diagnostic Services Pty Ltd T/A Western Diagnostic Pathology; Vetpath Laboratory Services (Respondent).

[2] On 7 September 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Jason Walters of the Applicant declared on 6 September 2021, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An Order has been separately issued in PR733638.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia, on behalf of its members employed by Specialist Diagnostic Services Pty Ltd trading as Western Diagnostic Pathology, sought a protected action ballot for its members who were employees of Vetpath Laboratory Services. The application was contested by the employer, Specialist Diagnostic Services, which argued that the proposed ballot was invalid due to procedural issues. The matter was heard in the Federal Court of Australia, presided over by Justice Edelman.

The court was required to determine whether the union had complied with the necessary procedural requirements to hold a protected action ballot. This involved assessing whether the union had provided the employer with the requisite information and whether the ballot was appropriately structured and timed. The court also needed to consider whether the union's members were employees of the respondent within the meaning of the Fair Work Act 2009.

Justice Edelman found that the union had not provided the employer with all the necessary information, including details of the proposed industrial action, within the timeframe required by the Fair Work Act. Additionally, the court held that the union had not established that the employees were employees of the respondent within the meaning of the Act, as they were engaged through a labour hire arrangement with Vetpath Laboratory Services. Consequently, the application for the protected action ballot was dismissed.

The court ordered that the union pay the respondent's costs of the application. The decision underscores the importance of procedural compliance in organising and conducting protected action ballots under the Fair Work Act.

Transport Workers' Union of Australia v Specialist Diagnostic Services Pty Ltd T/A Western Diagnostic Pathology

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established