United Workers' Union v Healthcare Supply Partners Pty Ltd T/A Healthcare Logistics
[2024] FWC 1240
•14 MAY 2024
| [2024] FWC 1240 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.459 - Application to extend the 30-day period in which industrial action is authorised by protected action ballot
United Workers' Union
v
Healthcare Supply Partners Pty Ltd T/A Healthcare Logistics
(B2024/469)
| COMMISSIONER TRAN | MELBOURNE, 14 MAY 2024 |
Application to extend the 30-day period in relation to B2024/197 - extension granted
On 22 April 2024, the United Workers Union (Union) applied under s 459(3) of the Fair Work Act 2009 (Cth) to extend the 30-day period in which proposed industrial action is authorised under a protected action ballot.
The Respondent employer is Healthcare Supply Partners Pty Ltd (Healthcare / Employer).
On 8 March 2024 Deputy President Hampton ordered that a protected action ballot be held in relation to employees of Healthcare, who would be covered by the proposed enterprise agreement and who are members of and represented by the union. The ballot was conducted by Democratic Outcomes Pty Ltd T/A CiVS (Agent).
The Agent declared the result of the protected action ballot on 20 March 2024. There were 95 total eligible voters out of a total of 141 employees of Healthcare. 71 eligible voters participated and approved the taking of all 18 forms of action that was the subject of the ballot. The 30-day period starting on the date of the declaration of the results of the ballot therefore ended on 19 April 2024.
These are detailed reasons for a decision that I delivered on 10 May 2024, in which I granted the application and ordered that the period during which industrial action is authorised under a protected action ballot is extended for a further 30 days to 19 May 2024.
Relevant Legislation
Section 459 of the Act provides:
“459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a)the action was the subject of the ballot; and
(b)at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c)more than 50% of the valid votes were votes approving the action; and
(d)the action commences:
(i)during the 30‑day period starting on the date of the declaration of the results of the ballot; or
(ii)if the FWC has extended that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
(2) If:
(a)the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b)the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).
(3) The FWC may extend the 30‑day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a)an applicant for the protected action ballot order applies to the FWC for the period to be extended; and
(b)the period has not previously been extended.”
Procedural history
This matter was allocated to my Chambers on 1 May 2024. I issued directions on 6 May 2024 but amended those directions following a request by the Union. I received outlines of argument, witness statements and documents in accordance with those directions.
I held a hearing via Microsoft Teams on 10 May 2024.
The union was represented by Mr S Howe, Industrial Officer. Mr Aaron Behmer, Organiser, gave evidence on behalf of the union.
I granted permission for the Employer to be represented by Mr D Mahendra, Counsel and Pinsent Masons. Mr John Barry Munnik, General Manager, gave evidence on behalf of the Employer.
The Employer submits that I should not extend the period
The Employer submits that I should not extend the period on the following grounds:
-the Commission cannot be satisfied that a majority of employees still support taking industrial action;
-the Applicant has not taken any industrial action during the initial 30-day period nor did it give notice to do so; and
-there would be no utility in extending the period to take protected industrial action as the parties have progressed negotiations for an enterprise agreement to the point where the Employer intends to request that employees vote on an agreement on 17 May 2024
In oral submissions, the Employer clarified its first ground as going to the likelihood of employees approving the proposed agreement when they are requested to vote upon it on 17 May 2024.
The Union’s submissions in support of an extension
The Union submits that it has met the criteria for an extension in that it has applied for the period to be extended, the period has not previously been extended, and that its application is an entirely orthodox application for an extension of the period within which industrial action is authorised by a protected action ballot.
The Union submits that it is appropriate for the Commission to exercise its discretion to extend the period under s 495(3) as it seeks to press the outstanding claims of its members, and that it has continued to bargain with the Employer throughout the initial 30-day period authorised by ballot and after it made the application to extend the period.
The union also submitted that industrial action continues to be supported by a majority of employees. Evidence of this was provided by Mr Behmer who conducted mass meetings with members on 18 April 2024 and 6 May 2024.
Consideration
The Commission’s power to extend the 30-day period under s 459(3) is discretionary. There are no statutory conditions on the exercise of that discretion,[1] other than the pre-requisites that an application has been made and that the period has not previously been extended. Neither of these matters are in dispute between the parties.
As stated by Commissioner Hampton (as he then was) in MUA v DP World Adelaide Pty Ltd[2] the discretion is “real, in that an extension need not follow a finding that the prerequisites have been met.” The Commission must be “positively satisfied” based on the material before it that it should extend the period. The discretion should also be exercised judicially and all relevant considerations taken into account.[3]
Relevant considerations include the object of Division 8 of Part 3-3 of the Act relating to protected action ballots, as provided in s 436:
The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.
A further relevant consideration include the objects of the Act in s 3, and particularly subsection (f):
achieving productivity and fairness through an emphasis on enterprise - level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action
A Full Bench in Energy Australia Yallourn Pty Ltd v CFMEU[4] has described the circumstances that would be “entirely conducive to the purposes and objects of the Act for the 30-day period to be extended” to include clear evidence that majority employee support for the action still exists, and resort to the action will be a legitimate way of seeking to achieve agreement where bargaining has stalled.
The Full Bench endorsed the view of Senior Deputy President O’Callaghan in NUW v Symbion Pharmacy Services Pty Ltd[5] where he said that the scheme of the Act allows for industrial action to be taken, or threatened to be taken, as a bargaining device.
The Full Bench also endorsed the view of Commissioner Hampton in DP World[6] where he said that the capacity to access protected industrial action for a further period is not in itself inappropriate as part of the bargaining regime, but that important factors included that the union had actively pursued its bargaining interest during the initial 30-day period and had not resorted to protected action for reasons that included the progress of negotiations and that an in-principle agreement had been reached on the basis that no industrial action would be taken.
In this matter, both parties agree that bargaining is continuing. Neither party pressed any matters relating to whether the other was not bargaining in good faith. That the union had not taken nor given notice of industrial action during the initial 30-day period should not be the basis upon which an extension is refused. The Union submitted that it was being responsible in so doing. A refusal on this ground may – contrary to the Employer’s submissions – encourage a union to take industrial action in the initial 30-day period simply for the purpose of keeping the option of taking industrial action available, which is an outcome that is to be avoided.[7]
In Symbion the parties were close to agreement, and in DP World the parties had reached in principle agreement. In both matters, the period was extended. The capacity to engage in protected industrial action is a necessary and important bargaining device to ensure that members may achieve the best possible outcome. Where agreement has not yet been reached, the Act allows for an extension of no more than a further 30 days. The Act is clear that only one extension may be provided such that any further industrial action is only protected if it is the subject of a new protected action ballot. This ensure that the initial approval of the industrial action remains current.
Commissioner Hampton observed that cogent reasons will need to be advanced by the party objecting to the application such as evidence of employees changing disposition or composition.[8] What must be shown, therefore, is that the majority of employees who had previously approved the forms of industrial action – the union members who were balloted – no longer support industrial action. I have no evidence before me that demonstrates this. Indeed, I have the opposite, in unchallenged evidence from Mr Aaron Behmer, organiser for the union. I also have evidence from both parties that further negotiation meetings are scheduled, including during the access period for the proposed agreement.
For the above reasons, I am satisfied that the extension should be granted in this matter. I grant the extension to 19 May 2024, which is a further 30 days from 19 April 2024, the date when the initial 30-day period ended.
An order reflecting this decision was issued separately.
COMMISSIONER
Appearances:
S Howe for the Applicant
D Mahendra for the Respondent
Hearing details:
2:00pm
Video using Microsoft Teams.
[1] CEPU v Rocky Point Sugar Mill[2018] FWC 4126 at [14].
[2] [2010] FWA 7638 at [28].
[3] Above at [29].
[4] [2013] FWCFB 2022 at [20] – [21].
[5] [2009] FWA 1284 at [10].
[6] [2010] FWA 7638 at [35].
[7] Above at [33].
[8] Above at [36].
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