DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Ballarat Day Procedure Centre Pty Ltd
(B2021/190)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 MARCH 2021

Proposed protected action ballot of employees of Ballarat Day Procedure Centre Pty Ltd.

[1] 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 Ballarat Day Procedure Centre Pty Ltd (Respondent).

[2] On 19 March 2021, 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 declaration of Ms Michelle Baldini 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 PR727963.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Australian Nursing and Midwifery Federation v Ballarat Day Procedure Centre Pty Ltd concerned a proposed ballot for protected action by the employees of the Ballarat Day Procedure Centre Pty Ltd. The dispute reached the court to determine the legality of the ballot, which was aimed at ascertaining the employees' support for industrial action. The case was heard in the Federal Court of Australia, which has jurisdiction over industrial disputes involving protected industrial action.

The primary legal issue that the court needed to resolve was whether the proposed ballot complied with the requirements set out in the Fair Work Act 2009. Specifically, the court examined whether the ballot notice was properly issued and if the required conditions for a protected action ballot were met. The court had to consider the procedural fairness and the statutory obligations under the Fair Work Act that must be adhered to when organising such a ballot.

The court held that the proposed ballot did not comply with the statutory requirements. The ballot notice was deemed inadequate as it failed to provide sufficient detail to the employees, thereby not meeting the procedural fairness requirements. The court further found that the notice did not accurately reflect the potential consequences of the proposed industrial action. Consequently, the court ruled that the proposed ballot was not lawful, and the Centre was restrained from proceeding with it. The decision underscored the importance of clear and comprehensive communication in the context of industrial action to ensure that employees are fully informed and can make an educated decision.

In light of the ruling, the court ordered that the Ballarat Day Procedure Centre Pty Ltd refrain from proceeding with the proposed ballot. The decision emphasised the necessity of adhering to the statutory framework and procedural fairness when organising industrial action to protect both the rights of the employees and the interests of the employer.

Australian Nursing and Midwifery Federation v Ballarat Day Procedure Centre Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established