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

[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

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).

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.

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.”

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.

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.”

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.

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.

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.

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).

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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers’ Union (UWU) applied to the Fair Work Commission (FWC) for a variation of a protected action ballot order in the case of Integrated Clinical Oncology Network Pty Ltd (Icon Cancer Centre). The application sought to change the closing date for voting in a protected action ballot, which was initially set to conclude on 2 April 2024, to 12 April 2024. The ballot agent had interpreted the order to allow the ballot to close on a date that was 10 working days from the commencement date specified by the agent, which led to the discrepancy. The application was made under section 447 of the Fair Work Act 2009, which allows for the variation of a protected action ballot order by either the applicant or the ballot agent.

The primary legal issue before the Commissioner was whether the application for variation of the ballot order was made in accordance with section 447 of the Act and whether it was appropriate to vary the order under the circumstances presented. The Commissioner had to consider the timing of the application, the interpretation of the ballot agent, and the effect of varying the order on the ballot process. The Commissioner noted that the application was made before the original closing date and that the Respondent did not oppose the application, which influenced the decision to proceed without a hearing.

Upon reviewing the application and the context of the ballot process, the Commissioner concluded that the application was made in good faith and within the timeframe stipulated by section 447(3)(a) of the Act. The Commissioner was also satisfied that varying the order was appropriate to ensure consistency between the decision and the order and to allow the ballot process to proceed without unnecessary disruption. Consequently, the Commissioner decided to vary the order to allow voting to close no later than 12 April 2024, aligning with the ballot agent's interpretation and the ballot schedule.

The Order was varied to reflect the new closing date for the voting in the protected action ballot. The variation was made to ensure that the ballot process could continue smoothly and that there was consistency between the Commission's decision and the ballot order. The variation order was issued concurrently with the Commissioner's decision.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established