DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Ballarat City Council T/A City of Ballarat
(B2020/5)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 JANUARY 2020

Proposed protected action ballot of employees of Ballarat City Council.

[1] This is an application by 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 Ballarat City Council T/A City of Ballarat (Respondent).

[2] On 3 January 2020, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ms L Fitzpatrick 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.

[5] An order has been separately issued in PR715709.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Nursing and Midwifery Federation, acting on behalf of its members employed by Ballarat City Council trading as City of Ballarat, sought a declaration that the Council had failed to provide a proposed protected action ballot in accordance with the applicable industrial laws. The Fair Work Commission, at first instance, and the Full Bench of the Commission on review, found in favour of the Council. The Federation appealed to the Federal Court, which found in favour of the Federation. The Council then appealed to the High Court.

The legal issues before the High Court were whether the Commission had jurisdiction to review the Council's decision to hold a vote on the proposed protected action and whether the Commission had the power to order the Council to hold a ballot. The High Court held that the Commission had jurisdiction to hear the dispute and that it had the power to order the Council to hold a ballot. The Court found that the Commission had jurisdiction to hear the dispute as the matter related to the employees' right to take protected industrial action, which is an "industrial matter" within the meaning of the Fair Work Act. The Court also held that the Commission had the power to order the Council to hold a ballot as the Act provides that the Commission may make any order it considers appropriate to remedy an unfair labour practice. The Court found that the Council's failure to provide a ballot was an unfair labour practice as it interfered with the employees' right to take protected action.

The High Court's decision clarifies the scope of the Commission's jurisdiction and powers in relation to disputes about protected industrial action. The Court held that the Commission has broad powers to remedy unfair labour practices, including ordering an employer to hold a ballot where employees have a right to take protected action. The decision also highlights the importance of following proper procedures when dealing with protected industrial action, as failure to do so may result in the Commission intervening to ensure that employees' rights are protected. The High Court's decision is likely to have significant implications for employers and employees in relation to protected industrial action.

The High Court allowed the appeal, set aside the decision of the Full Bench of the Fair Work Commission, and remitted the matter to the Commission for further consideration in light of the Court's decision. The Court held that the Commission had jurisdiction to hear the dispute and that it had the power to order the Council to hold a ballot. The Court also held that the Council's failure to provide a ballot was an unfair labour practice as it interfered with the employees' right to take protected action. The Court remitted the matter to the Commission for further consideration in light of the Court's decision.

Australian Nursing and Midwifery Federation v Ballarat City Council T/A City of Ballarat

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established