s.437 - Application for a protected action ballot order

Clinpath Laboratories Pty Ltd T/A Clinpath Pathology

Proposed protected action ballot of employees of Clinpath Laboratories Pty Ltd T/A Clinpath Pathology

• [1] This is an application by the Health Services' Union (HSU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Clinpath Laboratories Pty Ltd trading as Clinpath Pathology (Clinpath or Employer). The Commission understands that the parties are bargaining for an agreement to replace the Clinpath Laboratories - Enterprise Agreement 2021.

• [2] On 24 April 2025, the Commission was advised that the Employer objected to the Application on the grounds which included contended uncertainty about the employees to be subject to the ballot, the proposed ballot questions, and certain safety concerns.

• [3] In the circumstances, I scheduled a hearing to be conducted today to determine the matter. In the lead up to the hearing the parties continued constructive discussions and ultimately reached a common position on the above grounds. In that light, I have granted leave to amend the application and otherwise dealt with the application on the papers.

• [4] On the basis of the material before me, including the declaration of Angela Osborn-Johnson, Organiser, setting out the steps taken by the HSU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Clinpath, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

• [5] The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [6] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 15 May 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [7] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The minimum extended notice period of four (4) working days applies to the items listed within Clause 5 of the Order.

• [8] An Order has been separately issued in PR786428.

• [9] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] This is, in effect, 10 working days from the anticipated commencement of the ballot and was the period sought in the application.

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