Australian Nursing and Midwifery Federation v Albury Wodonga Health (Wodonga Hospital) & Others

[2024] FWC 831

[2024] FWC 831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Albury Wodonga Health (Wodonga Hospital) & Others

(B2024/280 – B2024/385)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 4 APRIL 2024

Proposed protected action ballots of employees of Albury Wodonga Health and 105 other Victorian public health care employers.

[1]       This decision concerns 106 applications by the Australian Nursing and Midwifery Federation (ANMF) made under s.437 of the Fair Work Act 2009 (Act) for protected action ballot orders in relation to certain employees of the employers who are subject to a Single Interest Employer Authorisation (SIEA) issued by the Fair Work Commission (Commission) on 6 March 2024.[1]

[2]       Each of these ballot applications relate to a Victorian public health employer that is authorised to bargain together via the SIEA covering 107 employer respondents. Since that authorisation, one of those employers - Kilmore Hospital, has amalgamated with another, Northern Health, leaving 106 employers (collectively the Employers).

[3]       Each of these Employers has appointed the Victorian Hospitals Industrial Association (VHIA) as their bargaining representative.

[4]       The group of employees to be balloted in each case are employees (other than those employed solely or predominantly in the provision of Public Mental Health Services which refers to the service, department, unit or program of the Employer rather than the duties of an individual employee) engaged as:

·  Registered Nurses

·  Registered Midwives

·  Enrolled Nurses

·  Trainee Enrolled Nurses

·  Registered Undergraduate Students of Nursing or Midwifery

·  Registered Enrolled Nurse Students

·  Early Parenting Practitioners.

[5]       The applications and proposed orders fall into 2 groups. There are a group of applications involving “Health Services” and another group involving “Community Health Services”. The proposed orders for each of the 2 groups have different ballot questions that reflect the nature of the activities of the Employers involved, but are otherwise identical to each other.

[6]        On 4 April 2024, the Commission was advised that the Employers did not object to the applications as amended to clarify certain proposed ballot questions and some administrative arrangements surrounding the ballot process.

[7]       In the circumstances, on 4 April 2024 I conducted a hearing to deal with the applications. In addition to certain drafting issues associated with the proposed orders that were raised by the Commission, the question as to whether 2 of the proposed ballot questions represented industrial action under s.19 of the Act, was also considered. The applications were further amended by leave of the Commission, and with the consent of all parties, to deal with all of these matters.

[8]       For reasons set out below, I have granted each application in the amended form, which reflects the common position emerging from the hearing.

[9]       There is no dispute, and I find, that each of the applications are in order and have been properly made under the terms of the Act.

[10]     Further, on the basis of the material before me, including the declarations of Paul Gilbert, Assistant Secretary, setting out the steps taken by the ANMF in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, 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.

[11]     The ballots are to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved[2] as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballots.

[12]     For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in each ballot is 29 April 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[13]     I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended minimum period of written notice for the purposes of s.414(2)(b) of the Act when taking certain forms of industrial action set out in the Orders made by the Commission. The extended notice period of 7 calendar days applies to the items listed under that heading within clause five (5), and confirmed in clause fourteen (14), of each of the Orders. The default minimum period of 120 hours[4] continues to apply to the other forms of action.

[14]     The Orders properly reflect all of the requirements of s.443(3) of the Act.

[15]     An Order has been issued in each application. A full list of application numbers, Employers and the Orders issued is attached as Appendix A to this Decision.

[16]     Each matter will be assigned to a single 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 involved 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

Appendix A

Health Services Group

Matter no.	Employer	Order Print ID
B2024/280	Albury Wodonga Health (Wodonga Hospital) (Trading as Albury Wodonga Health)	772947
B2024/281	Alexandra District Hospital (Trading as Alexandra District Health)	772948
B2024/282	Alfred Health	772949
B2024/283	Alpine Health	772951
B2024/284	Austin Health	772961
B2024/285	Bairnsdale Regional Health Service	772962
B2024/286	Barwon Health	772963
B2024/287	Bass Coast Health	772965
B2024/288	Beaufort and Skipton Health Service	772940
B2024/289	Beechworth Health Service	772966
B2024/290	Benalla Health	772967
B2024/291	Bendigo Health	772968
B2024/292	Boort District Health	772969
B2024/293	Calvary Health Bethlehem Hospital Limited (Trading as Calvary Health Care Bethlehem Limited)	772970
B2024/294	Casterton Memorial Hospital	772972
B2024/295	Central Gippsland Health Service	772973
B2024/296	Central Highlands Rural Health	772974
B2024/297	Cohuna District Hospital	772975
B2024/298	Colac Area Health	772977
B2024/299	Corryong Health	772978
B2024/300	Darlingford Upper Goulburn Nursing Home	772979
B2024/301	Dental Health Services Victoria	772980
B2024/302	Dhelkaya Health	772981
B2024/303	East Grampians Health Services	772982
B2024/304	East Wimmera Health Service	772983
B2024/305	Eastern Health	772984
B2024/306	Echuca Regional Health	772985
B2024/307	Gippsland Southern Health Service	772992
B2024/308	Goulburn Valley Health	772993
B2024/309	Grampians Health	772994
B2024/310	Great Ocean Road Health	772995
B2024/311	Heathcote Health	772996
B2024/312	Hesse Rural Health Service	772997
B2024/313	Heywood Rural Health	772998
B2024/314	Indigo North Health Inc	772999
B2024/315	Inglewood & Districts Health Service	773000
B2024/316	Red Cliffs and Community Aged Care Services Inc (Trading as Jacaranda Village)	773001
B2024/317	Kerang District Health	773002
B2024/318	Kooweerup Regional Health Service	773003
B2024/319	Kyabram District Health Services	772941
B2024/320	Latrobe Regional Hospital	772942
B2024/321	Lyndoch Living (Trading as Lyndoch Living Limited)	772943
B2024/322	Mallee Track Health and Community Service	773004
B2024/323	Mansfield District Hospital	773005
B2024/324	Maryborough District Health Service	773006
B2024/325	Melbourne Health	773007
B2024/326	Mercy Hospitals Victoria Ltd (Trading as Mercury Aged and Community Care Ltd)	773008
B2024/327	Mildura Base Public Hospital	773009
B2024/328	Monash Health	773010
B2024/329	Moyne Health Services	773011
B2024/330	NCN Health	773012
B2024/331	Northeast Health Wangaratta	773013
B2024/332	Northern Health	773014
B2024/333	Omeo District Health	773015
B2024/334	Orbost Regional Health	773016
B2024/335	Peninsula Health	773017
B2024/336	Peter MacCallum Cancer Institute (Trading as Peter MacCallum Cancer Centre)	773018
B2024/337	Portland District Health	773019
B2024/338	The Queen Elizabeth Centre	773020
B2024/339	Robinvale District Health Services	773021
B2024/340	Rochester & Elmore District Health Service	773022
B2024/341	The Royal Children's Hospital	773023
B2024/342	The Royal Victorian Eye & Ear Hospital	773024
B2024/343	The Royal Women's Hospital	773025
B2024/344	Rural Northwest Health	773026
B2024/345	Seymour Health	773027
B2024/346	South Gippsland Hospital	773029
B2024/347	SouthWest Healthcare	773030
B2024/348	St Vincent's Hospital (Melbourne) Limited	773032
B2024/349	Swan Hill District Health	773033
B2024/350	Tallangatta Health Service	773034
B2024/351	Terang and Mortlake Health Services	773035
B2024/352	Timboon & District Health Care Service	773036
B2024/353	Tweddle Child & Family Health Service	772944
B2024/354	West Gippsland Healthcare Group	773037
B2024/355	West Wimmera Health Service	773038
B2024/356	Western District Health Service	773039
B2024/357	Western Health	773040
B2024/358	Yarram & District Health Service	773041
B2024/359	Yarrawonga Health	773071
B2024/360	Yea and District Memorial Hospital	773072

Community Health Services Group

Matter no.	Employer	Order Print ID
B2024/361	Access Health and Community	773073
B2024/362	Ballarat Community Health	773075
B2024/363	Banyule Community Health	773076
B2024/364	Bellarine Community Health Ltd (Trading as Bellarine Community Health)	773080
B2024/365	Better Health Network	773081
B2024/366	Bendigo Community Health Services Ltd (Trading as Bendigo Community Health Services)	773082
B2024/367	Cohealth Limited	773083
B2024/368	DPV Health Ltd	773084
B2024/369	EACH	773085
B2024/370	Gateway Health Limited	773086
B2024/371	Gippsland Lakes Complete Health Limited	773087
B2024/372	Grampians Community Health	773088
B2024/373	Ranges Community Health (Trading as Inspiro)	773089
B2024/374	IPC Health Ltd	773091
B2024/375	Latrobe Community Health Service Limited	773092
B2024/376	Merri Community Health Services Limited (Trading as Merri Health)	773093
B2024/377	Nexus Primary Health	773050
B2024/378	Nillumbik Community Health Service Ltd (Trading As health Ability Victoria)	773042
B2024/379	North Richmond Community Health Limited	773043
B2024/380	Northern District Community Health	773044
B2024/381	Primary Care Connect	773045
B2024/382	Sunbury and Cobaw Community Health (Trading As Sunbury Community Health Centre Limited)	773046
B2024/383	Sunraysia Community Health Services Limited	773047
B2024/384	Darebin Community Health Service (Trading as Your Community Health)	773048
B2024/385	Ensay Bush Nursing Centre	773049

[1] [2024] FWC 482 and PR771706.

[2] Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting[2023] FWC 1531.

[3] This period reflects the number and nature of the ballots to be conducted and was agreed between the parties with the concurrence of the Agent.

[4] Section 414(2)(a)(ii) of the Act - as these matters involve a proposed multi-enterprise agreement.

Printed by authority of the Commonwealth Government Printer

<PR772945>