Australian Nursing and Midwifery Federation v Summary

[2022] FWC 216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Serco Australia Pty Ltd
(B2022/41)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 FEBRUARY 2022

Proposed protected action ballot of employees of Serco Australia Pty Ltd.

This is an application by the Australian Nursing and Midwifery Federation (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Serco Australia Pty Ltd (Respondent).

On 1 February 2022, my Associate was advised that the Respondent 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 Mr Daniel Crute of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR737969.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANM) sought an order for a protected action ballot from Serco Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009 and pertained to certain employees of Serco. The matter was determined on the papers, as the respondent did not object to the application. The applicant had declared that it had been genuinely trying to reach an agreement with the respondent, and had met the requirements of section 443(1) of the Act.

The key legal issue was whether the applicant had fulfilled the conditions set out in the Act for a protected action ballot. The court needed to consider whether there was a notification time in relation to the proposed agreement and whether the applicant had genuinely attempted to reach an agreement with the respondent. The court based its decision on the material provided by the applicant, including the declaration of Mr Daniel Crute of the ANM.

In determining the matter, the court was satisfied that the applicant had met the requirements of the Act and that the notification time in relation to the proposed agreement existed. The court found that the applicant had genuinely tried to reach an agreement with the respondent, and that the requirements of section 443(1) of the Act had been met. As a result, the court issued an order for a protected action ballot.

The final orders were issued in PR737969, granting the ANM's application for a protected action ballot. This decision allowed the ANM to proceed with the ballot in accordance with the provisions of the Fair Work Act 2009.

Australian Nursing and Midwifery Federation v

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established