Australian Nursing and Midwifery Federation, Tasmanian Branch v Healthe Care Burnie Pty Ltd T/A North West Private Hospital

[2024] FWC 2336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation, Tasmanian Branch
v

Healthe Care Burnie Pty Ltd T/A North West Private Hospital

(B2024/1118)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 SEPTEMBER 2024

Proposed protected action ballot of employees of Healthe Care Burnie Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation (ANMF 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 Healthe Care Burnie Pty Ltd trading as North West Private Hospital (NWP or Employer).

On 2 September 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Emily Shepherd, Branch Secretary, setting out the steps taken by the ANMF in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with NWP, 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.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 17 September 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR778825.

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.

DEPUTY PRESIDENT

[1] This is, in effect, 11 days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation, Tasmanian Branch (ANMF) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order against Healthe Care Burnie Pty Ltd trading as North West Private Hospital (NWP). The purpose of the application was to organise a ballot for certain employees regarding potential protected actions. The employer did not object to the application, leading to the determination of the matter on the submitted documents without a hearing.

The central legal issues involved whether the ANMF had genuinely attempted to negotiate with the employer and if all the statutory requirements for a protected action ballot were satisfied. The Deputy President examined the declaration from Emily Shepherd, Branch Secretary of the ANMF, which detailed the union's efforts to reach an agreement with the employer. The court also considered the employer's implicit acceptance by not opposing the application. The Deputy President concluded that all requirements for a protected action ballot had been fulfilled.

Given the evidence presented, the Deputy President determined that the notification period for the proposed agreement had been met and that the ANMF had genuinely engaged in negotiations. The court fixed the closing date for the ballot as 17 September 2024. Vero Engagement & Voting Solutions Pty Ltd, an approved ballot agent, was authorised to conduct the ballot. The Commission also scheduled a compulsory conciliation conference to be conducted by another member, aimed at facilitating meaningful negotiations between the parties.

In conclusion, the Deputy President issued an order for the ballot to be conducted by Vero, set the closing date for voting, and directed the scheduling of a conciliation conference. This decision ensures that the process for protected action proceeds in accordance with the legislative requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established