United Workers’ Union (108V) v Integrated Clinical Oncology Network Pty Ltd (Icon Cancer Centre)

[2024] FWC 692

[2024] FWC 692

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union (108V)
v

Integrated Clinical Oncology Network Pty Ltd (Icon Cancer Centre)

(B2024/221)

COMMISSIONER HUNT BRISBANE, 18 MARCH 2024

Proposed protected action ballot of employees of Integrated Clinical Oncology Network Pty Ltd

1. The United Workers’ Union (the UWU) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of Integrated Clinical Oncology Network Pty Ltd (the Respondent).

1. The Respondent notified a number of objections, including objecting to the notification time of the proposed industrial action. A hearing by video was arranged for this afternoon, however prior to the hearing, the UWU wrote to my chambers advising that the parties have reached agreement in respect to the objections. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the statutory declaration of Mr James McCall, Organiser of the UWU, setting out the steps taken by the UWU in bargaining with the Respondent and confirming that the UWU has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.

1. I am satisfied that the UWU has given notice in accordance with section 440 of the Act.

1. The parties reached a consent position during private discussions regarding the Respondent’s objections, including the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days. The parties considered it appropriate, having regard to the nature of the industry that the Respondent operates in, for the Respondent to be provided with five working days’ notice for questions 1 to 31, inclusive. In light of this agreement, the Respondent withdraws all of its objections.

1. Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.

1. In my view, specifying a longer period of notice for the questions within the Order is justified by the particular exceptional circumstances in this case as detailed in the Respondent’s response, particularly noting that the work performed by employees is in cancer treatment centres where patients are receiving radiation therapy.  I am satisfied it is appropriate in all of the circumstances to ensure that the Respondent can take necessary steps to mitigate any protected industrial action by being given at least five working days’ notice of any planned protected industrial action.

1. The protected action ballot order will specify a required period of notice of at least five working days for questions 1 to 31, inclusive.

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 the ballot is 2 April 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. The ballot is to be conducted by the Democratic Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently authorised to conduct the ballot.[1]

1. The scheme of the Act is now that where named in the PABO application and proposed orders, the Commission will, subject to the Act, be obliged to, in effect, appoint that eligible protected action ballot agent to conduct the ballot concerns.

1. The Order [PR772440] will be issued concurrently with this Decision.

1. This matter will be listed for a s.448A conference. An Order and Direction will be issued shortly requiring attendance at the conference.

COMMISSIONER

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

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