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

[2024] FWC 879

[2024] FWC 879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

United Workers’ Union
v

Integrated Clinical Oncology Network Pty Ltd (Icon Cancer Centre)

(B2024/400)

COMMISSIONER HUNT BRISBANE, 5 APRIL 2024

Application for a variation of a Protected Action Ballot Order in B2024/221

1. The United Workers’ Union (UWU) has made an application under s.447 of the Fair Work Act 2009 (the Act) for a variation of a protected action ballot order in matter B2024/221 on 18 March 2024 [PR772440] (the Order).

1. The UWU’s application seeks to vary the Order to the effect that the date by which voting is to close is no later than 12 April 2024.

1. Section 447 of the Act sets out the circumstances in which the Fair Work Commission (the Commission) may vary a protected action ballot order:

“447      Variation of protected action ballot order

(1)       An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2)       The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3)       An application may be made under subsection (1) or (2):

(a)       at any time before the date by which voting in the protected action ballot closes; or

(b)       if the ballot has not been held before that date and the FWC consents – after that time.

(4)       If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.”

1. During the s.448A conference in the matter B2024/221, it was raised to me that the ballot will close on 12 April 2024 in accordance with the ballot table prepared by the ballot agent. This was not in accordance with my Order, where I had specified in the Decision that the ballot is to close on 2 April 2024.

1. The Order specified at paragraph 9.2 that:

“9.2.1     The Agent will determine the date the ballot commences in accordance with s.451. The Commencement Date will be included in the timetable compiled in accordance with paragraph 11 of this Order. The ballot will not commence before the Commencement Date.

9.2.2    The date by which voting in the protected action ballot is to close is no later than 10 working days from the Commencement Date.”

1. It is taken that the ballot agent had interpreted the Order that ballot is to close 10 working days from a date in which it declared to be the Commencement Date.

1. In order to give effect to the ballot process which has commenced, and to provide consistency between the Decision and Order, the UWU seeks the Order to be varied.

1. On 5 April 2024, the Respondent wrote to my chambers advising that it does not oppose the application. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. I am satisfied that the application has been made in accordance with s.447(1) of the Act. In consideration that the ballot is scheduled to close on 12 April 2024, I am satisfied that the application was made at a time before the date by which voting in the protected action ballot closes as per s.447(3)(a).

1. Having regard to the material before me, I am satisfied it is appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is no later than 12 April 2024.

1. The Order [PR773182] will be issued concurrently with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR773212>