United Workers' Union v Genesis Cancer Care QLD Pty Limited

[2024] FWC 2883

[2024] FWC 2883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Genesis Cancer Care QLD Pty Limited

(B2024/1356)

DEPUTY PRESIDENT HAMPTON MELBOURNE, 17 OCTOBER 2024

Proposed protected action ballot of employees of Genesis Cancer Care QLD Pty Limited 

1. This is an application by the United Workers’ Union (UWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Genesis Cancer Care QLD Pty Limited (Genesis or Employer). 

1. On 17 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended following discussions between the parties but noted some concerns it had in relation to the proposed ballot questions.

1. 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 declaration of James McCall, Union Official, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Genesis, 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 ballot is 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 is 31 October 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act. 

1. In relation to the ballot questions, Genesis sought that further details be provided to assist the employees to make an informed choice. I observe that the requirements for the application and the making of the present proposed order require that the nature of the proposed action be set out.[2] This is to be contrasted with the detail of the action that must be notified in the event that (protected) industrial action is to be subsequently taken.[3] I have not required a change to the proposed ballot question consistent with the approach discussed comprehensively by the Full Bench in National Tertiary Education Industry Union v Curtin University.[4]

1. An Order has been separately issued in PR780333.

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 in 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

[1] This is, in effect, 10 working days from the date of the Order and was the period sought in the application.

[2] Sections 437(3)(b) and 443(3)d) of the Act.

[3] Section 414 of the Act.

[4] [2022] FWCFB 4740 at [46].

Printed by authority of the Commonwealth Government Printer

<PR780336>