v Genesis Cancer Care Victoria Pty Ltd

[2024] FWC 1733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Health Services Union

Genesis Cancer Care Victoria Pty Ltd

(B2024/830)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 1 JULY 2024

Application to extend the 30 day period in relation to B2024/535.

This matter concerns the declaration of the result of a protected action ballot PR774976 held in matter B2024/535 and declared on 4 June 2024.

The Health Services Union has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(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.”

The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Genesis Cancer Care Victoria Pty Ltd has advised the Commission that it does not, in effect, object to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 1 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union, acting on behalf of its members, applied to the Fair Work Commission for an extension of the 30-day period in which industrial action is authorised by a protected action ballot. This application was made in relation to a dispute with Genesis Cancer Care Victoria Pty Ltd, concerning the extension of time for commencing industrial action. The ballot, PR774976, was declared on 4 June 2024. The Union sought to extend the period under section 459(3) of the Fair Work Act 2009, arguing that all statutory requirements had been fulfilled and that the extension was necessary. Genesis Cancer Care Victoria Pty Ltd did not oppose the application.

The primary legal issue before the Commission was whether the statutory requirements for extending the 30-day period for protected industrial action had been met. Specifically, the Commission needed to determine if the application was made by the applicant within the stipulated timeframe, and if the period had not previously been extended. Under section 459(3) of the Act, the Commission has the discretion to extend the period by up to 30 days if the conditions are satisfied. The Union argued that both conditions were met and that the extension was necessary for the protection of the employees' rights.

The Deputy President, Hampton, concluded that the Union had satisfied the statutory requirements for the extension of the period. The Commission noted that Genesis Cancer Care Victoria Pty Ltd did not object to the application, and that the Union had fulfilled all necessary conditions as per the Act. Therefore, the Deputy President granted the application, extending the 30-day period by an additional 30 days. This extension became effective from 1 July 2024, providing eligible employees with an additional period to commence protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established