Fair Work Commission|2025-03-24

Health Services Union of Australia Victoria No 1 Branch, trading as 'Health Workers Union' (HWU) v Clinical Laboratories Pty Ltd, trading as 'Australian Clinical Labs' (ACL) [2025] FWC 826 (24 March 2025)

s.459 - Protected action

Health Services Union of Australia Victoria No 1 Branch, trading as 'Health Workers Union' (HWU)

Clinical Laboratories Pty Ltd, trading as 'Australian Clinical Labs' (ACL)

Application to extend the 30-day period for the commencement of protected industrial action

[1] The Health Workers Union (HWU)[1] represents certain employees engaged by Australian Clinical Labs (ACL)[2] in the classifications of pathology collectors, couriers, clerical staff, laboratory assistants, cleaners, store persons, handypersons and maintenance staff in Victoria. HWU and ACL, along with a number of other bargaining representatives, have been involved in a long and difficult bargain for a proposed agreement.

[2] On 6 February 2025, the Fair Work Commission made an order for the conduct of a protected action ballot[3] (the ballot) to determine whether HWU members at ACL wished to authorise the taking of protected action in support of the proposed agreement. The ballot results were declared on 21 February 2025 and showed that HWU members had voted in support of authorising protected action.

[3] Section 459(1)(d)(i) of the Fair Work Act 2009 (the Act) relevantly provides that industrial action by employees is authorised by a protected action ballot if the action commences during the 30- day period starting on the date of the declaration of the results of the ballot. In this instance, the 30- day period commenced on 21 February 2025 and expired on 23 March 2025 (the first 30-day period).

[4] The HWU and ACL, along with other bargaining representatives, have continued to engage in bargaining meetings during the first 30-day period. Despite ongoing bargaining, the parties remain significantly apart on numerous issues, including wages.

[5] On 11 March 2025, the HWU notified ACL that it intended to take industrial action. On 12 March 2025, ACL lodged an application for an order to stop unprotected industrial action pursuant to s 418 of the Act. Prior to any hearing in this matter the parties reached an agreement to settle the s.418 dispute. This involved the HWU withdrawing its 11 March 2025 notice to take industrial action.

[6] On 14 March 2025, the HWU made an application, pursuant to s.459(3) of the Act to extend the 30-day period for protected action. On the same day, ACL notified the Commission that it intended to oppose the application and wished to be heard on the matter. No grounds for opposing the application were identified.

[7] Having regard to the impending expiry of the first 30-day period, and the objects of the Part 3-3, Division 8, I listed the matter for an expedited hearing at 2.30pm on Thursday 20 March 2025.

[8] ACL did not provide the grounds for objection or any material in support of its position prior to the hearing, despite directions seeking brief submissions. Rather ACL notified that "it will deliver oral submissions and call viva voce evidence."

[9] At 2.18PM on 20 March 2025, 12 minutes before the start of the hearing, ACL emailed my Chambers notifying that it had filed an application in the Commission for bargaining orders, on ground that the HWU had breached good faith bargaining requirements.

[10] At the hearing ACL raised several objections to the s.459 application, including contending that the HWU was not bargaining in good faith.

[11] This decision considers whether I should exercise my discretion to grant the HWU's application for an extension to the 30-day period.

[12] Section 459(1)(d) of the Act provides that industrial action authorised by a protected action ballot, must commence:

"(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."

[13] 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

[14] Section 459(3) provides the FWC with a broad discretion to extend the 30-day period subject to the requirements in (3)(a) and (3)(b). Asbury DP (as she was then) summarised some of the key principles applying to the discretion in s.459(3) in Australian Manufacturing Workers' Union v Mulgrave Central Mill Company Limited as follows:[4]

"[9] It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436. The discretion is wide and is unconditioned by a statutory direction. Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.

[10] Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made; parties have participated in conciliation during the original 30 day period; or have refrained from taking industrial action and bargained constructively. It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process."

[15] At the hearing ACL relied on witness evidence from Mr Darren McKee, State CEO and Ms Carly Dormans, State Collection Service Manager. I found both Mr McKee and Ms Dormans sincere and believable, albeit that they were both clearly very frustrated with the bargaining process.

[16] At the commencement of the hearing ACL drew my attention to the fact HWU is in administration but provided no submissions on why this had any relevance to the determination of the application. In my view this matter has no relevance.

[17] ACL contended that I should not exercise my discretion to grant an extension on the following five grounds:

HWU had not taken any industrial action in the first 30-day period. ACL submitted that the right to take protected industrial action was a "use it or lose it" right, and as the HWU had not taken action, this should weight against an exercise of the discretion in their favour.

HWU was not bargaining in good faith. In relation to this ground ACL contended that the HWU had engaged in a range of conduct that breached good faith bargaining requirements under s.228 of the Act. ACL's contentions in this regard were summarised as follows:

HWU has made statements regarding intractable bargaining and/or has no preparedness to be flexible - ACL witnesses gave evidence that Mr Collins, HWU organiser, had made repeated comments relating to intractable bargaining. ACL contended, in effect, that the HWU was not engaging in genuine bargaining because they were set on an intractable bargaining declaration. ACL further contended that the HWU had a "take it or leave" attitude that hindered bargaining

HWU was "flip-flopping", refusing to be locked into a position, and not properly considering proposals - the main evidence in relation to this related to a recent wage offer put by ACL. Mr McKee gave evidence that Mr Collins had made an "off the cuff" comment suggesting that a particular wage offer may be acceptable. When Mr McKee spoke to Mr Collins on the phone later, Mr Collins did not offer support for the offer, but nor did he outright reject the offer. However, in the bargaining meeting on 19 March 2025, Mr Collin's said the offer was rejected. Mr McKee and Ms Dormans gave further evidence that at the meeting on 19 March 2025 Mr Collin's stated he would take the position to his members, but said words to the effect that the offer would be rejected anyway.

The HWU was spreading misinformation - ACL contended that HWU had provided misinformation to their members. Mr McKee and Ms Dormans provided evidence that they had seen documents that inaccurately reflected the ACL's annual profit, inaccurately recorded ACL's wage offer, and made false claims regarding ACL halving sick leave entitlements.

Being rude and disrespectful in meetings - ACL contended that HWU had engaged in rude and disrespectful behaviour that impacted on bargaining. Ms Dormans provided evidence that Mr Collins had, on a number of occasions, questioned her authority and credentials. Mr McKee and Ms Dormans gave evidence of Mr Collins speaking over people in meetings and that sometimes the HWU team engaged in swearing.

• Failing to provide information in a timely manner - both Mr McKee and Ms Dormans provided evidence that HWU had not provided information in accordance with directions I had issued in a (now discontinued) bargaining dispute[5]. ACL contended this breached good faith bargaining requirements.

Bargaining was not proceeding efficiently - ACL contended that because of the HWU conduct referred to above, bargaining was not proceeding efficiently, and this should weigh against exercising my discretion in HWU's favour**.**

HWU had not taken initiative to progress the bargaining since 21 February 2025 - ACL contended that since the commencement of the first 30-day period, ACL had been the party to arrange bargaining meetings and try to progress the bargain. This should weigh against exercising the discretion in HWU's favour.

Finally, ACL contended that the HWU has not established grounds for the discretion to be exercised in their favour.

[18] HWU submitted that the requirements for an extension to the 30-day period had been met and that the Commission should exercise its discretion to grant the application. The HWU contended that they were genuinely trying to reach agreement and relied on evidence before the Commission that the HWU had attended a number of bargaining meetings during the first 30-day period and continued to engage in discussions. The HWU contended it was not appropriate for the Commission to deal with the good faith bargaining order application as part of this application. The HWU contended that to do so would be unfair on the HWU as they had not had the opportunity to review ACL's application and they would want the proper opportunity to be heard and to call witnesses.

[19] It is uncontested that the threshold requirements for an application under s.459(3) have been met. The HWU, as an applicant for a protected action ballot order, has applied to extend the 30-day period, and the period has not previously been extended. I now turn to whether I should exercise my discretion to extend the period.

[20] The discretion conferred on the Commission under s 459(3) is to be exercised having regard to the evident statutory purpose of the provision, read in the context of Part 3-3 and the Act as a whole, and taking into account the circumstances of the relevant application. I note that the object of Division 8 of Part 3-3, in which s 459(3) appears, 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."[6]

[21] Section 459(3) provides that an applicant can apply for a "one-off extension" without need for a further ballot and the time and cost involved in a further ballot application. Bearing in mind the purpose of the Division as stated above, the Commission should only refuse the extension if there are "cogent reasons" to do so.[7]

[22] Having considered all the circumstance of this matter, I do not find that there are any cogent reasons for me to refuse to extend the 30-day period. Furthermore, the evidence before me weighs in favour of an exercise of the discretion to extend the period.

[23] For the following reasons I have rejected ACL's objections to the application:

HWU has not taken industrial action during the first 30-day period.

[24] The fact that HWU has not taken action within in the first 30-days is not, in and of itself, a reason to refuse the exercise of my discretion. Such an approach may lead to parties taking industrial action during the first 30-day period "simply to preserve the right" to take action, as opposed to advancing bargaining. This may well be counterproductive to bargaining, as well as counter to the objects of s.436.[8]

[25] In any event, it is clear on the evidence before me that during the first 30-day period the parties have continued discussions to progress the bargain. On the material before me HWU actively considered taking industrial action and put in notice to take action but later reached an agreement with ACL to withdraw the notice.

[26] This objection does not provide adequate grounds for me not to exercise my discretion in favour of an extension.

[27] The contention that HWU was not bargaining in good faith was ACL's key objection to the application.

[28] The conduct of the parties may be a relevant discretionary consideration. However, objecting to an application to extend the 30-day period is not an alternative vehicle to pursue good faith bargaining orders. There are specific prerequisites that need to be met for good faith bargaining orders, and there is a relatively high benchmark for the making of such orders. [9] In the matter before me - ACL filed an application for good faith bargaining orders less than 15 minutes before the hearing in this matter. I agree with the HWU that they should be given a proper opportunity to respond to allegations that they have breached the good faith bargaining requirements, including the ability to call witnesses. While I was prepared to hear submissions and evidence from ACL on conduct, I have approached these submissions and evidence by considering whether ACL have established any behaviour that provides a cogent reason to refuse an extension to the 30-day period. I note that the comments and finding I make below with regards to conduct are made in relation to this application based on the limited evidence before me at the s.459 hearing.

HWU statements regarding intractable bargaining, no preparedness to be flexible

[29] The parties have been in dispute for a considerable period of time, and their positions remain significantly apart. Ultimately, if the parties are unable to reach agreement through the bargaining process an application for an intractable bargaining declaration under s.234 is a legitimate option for a bargaining representative to consider. Having acknowledged the ability of a bargaining representative to make an application for an intractable bargaining declaration, I hasten to add that the Commission will only make an intractable bargaining declaration if satisfied "there is no reasonable prospect of agreement being reached" (s.235(2)(b)), so it is unwise for any bargaining party to give up on bargaining too readily. However, despite ACL's contention that Mr Collins is not engaging in bargaining because he is relying on an intractable bargaining declaration, at this stage the HWU has not made an intractable bargaining declaration application. Instead, HWU is pursuing its right to exercise protected industrial action to place pressure on ACL to further bargaining.

[30] I do not believe that evidence of Mr Colins raising the prospect of intractable bargaining establishes a reason to refuse the extension.

[31] In addition, while it was clear to me that Mr McKee and Ms Dormans' were extremely frustrated with bargaining, the fact that the HWU may not have made many concessions during bargaining is not in itself a breach of good faith bargaining (see s.228(2)(a)) and does not provide a satisfactory reason for me to refuse an extension.

HWU was "flip-flopping", refusing to be locked into a position, and not properly considering proposals

[32] It is clear that the parties are not in agreement over key issues, and as noted above, there is no requirement to make concessions under good faith bargaining provisions.

[33] The evidence before me in relation to the Mr Collins' response to the proposed wage offer made by ACL on 19 March 2025 does not establish conduct that I consider leads to a conclusion that I should refuse the extension of time. It was made clear to Mr McKee in the one-on-one phone call with Mr Collins that Mr Collins was not an advocate for the proposed wage offer. I can understand why ACL may have hoped for a more positive reception from Mr Collins in the meeting, considering they believed they were responding to an "off the cuff" suggestion by him. However, Mr Collins view that members would reject the offer is not enough, on its own, for me to conclude Mr Collins was acting improperly, and/or not properly considering a proposed offer. It is uncontested that Mr Collins stated he would take the offer to HWU members, despite his view that the offer would be rejected.

Misrepresentation, Rude and Disrespectful Behaviour, and Failure to Provide Information in a Timely Fashion

[34] Much of the conduct complained about in relation to misrepresentations, rude and disrespectful behaviour and failure to provide information appears to have occurred over a considerable period of time. These matters are better dealt with under a good faith bargaining application rather than the current application. This would allow the HWU the proper opportunity to respond to the allegations made against it and present evidence. I further note that the type of orders that can be sought under bargaining orders are more appropriate for dealing with such matters.

[35] While the conduct raised in evidence may go to good faith bargaining matters (I was particularly concerned with evidence given by Ms Dormans that her credentials have been repeatedly questioned), I was not persuaded that any of the conduct complained about was such that I should not exercise my discretion to extend the 30-day period. Again, I emphasis, that this in no way pre-determines an outcome in relation to good faith bargaining orders application- noting that such an application will take into account different considerations and have substantially more evidence before it.

[36] For the same reasons as above, I do not find any of the conduct ACL contends impacts on the bargaining proceeding efficiently is significant enough to make me refuse to exercise my discretion.

HWU had not taken initiative to progress bargaining

[37] The evidence before me establishes that during the first 30-day period the HWU engaged in bargaining meetings. . I am satisfied that all bargaining representatives continue to genuinely try to reach agreement. There is no requirement that the HWU has to organise the meetings. This objection does not provide adequate grounds for me to refuse to exercise my discretion to extend the 30-day period.

The HWU had not established grounds for the discretion in s 459 to be exercised in its favour.

[38] HWU has established the prerequisites for extending the 30-day period have been met and that it is genuinely trying to reach agreement. Bearing in mind the objects of the Division, there is no requirement on an applicant to jump through hoops to argue for an extension of the 30-day period.

[39] I have determined that it is appropriate to exercise my discretion to extend the 30-day period in this case. In coming to this determination, I have taken into account that the HWU has continued to engage in bargaining meetings over the first 30-day period, and I find that the HWU is genuinely trying to reach agreement. For the above reasons, I am not satisfied that there are any cogent reasons for me not to exercise my discretion to extend the 30-day period.

[40] I have further taken into account the cost, inconvenience and delay that would be associated with a further protected action ballot application being made in the event the present application were declined, and the fact that there is no evidence of any change in circumstances that would be relevant to the consideration of a further ballot application, such as a change in composition of the workforce. In this regarding I am also satisfied that an extension would be consistent with the objectives of s.436 of the FW Act.

[41] No submissions were made about the length of the extension. In the circumstances I consider that it is appropriate to extend the period by 30 days.

[42] 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 ACL be extended by a further 30 days commencing from 24 March 2024.

[43] An Order has been separately issued in PR785491.

[1] Health Services Union of Australia Victoria No 1 Branch, trading as 'Health Workers Union' (HWU)

[2] Clinical Laboratories Pty Ltd, trading as 'Australian Clinical Labs' (ACL)

[4] [2016] FWC 4976, [9] - [10].

[7]AMWU v Mulgrave Central Mill Company Limited [2016] FWC 4976 at [10]

[9] Liquor, Hospitality and Miscellaneous Union v Minda Incorporated [2010] FWA 3461 at [23]

Printed by authority of the Commonwealth Government Printer

Health Services Union of Australia Victoria No 1 Branch, trading as 'Health Workers Union' (HWU) v Clinical Laboratories Pty Ltd, trading as 'Australian Clinical Labs'

At a glance

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Decision date

Source

Judgment (78 paragraphs)

Health Services Union of Australia Victoria No 1 Branch, trading as 'Health Workers Union' (HWU) v Clinical Laboratories Pty Ltd, trading as 'Australian Clinical Labs' (ACL) [2025] FWC 826 (24 March 2025)

Parties

Legislation Cited (1)