Australian Nursing and Midwifery Federation v Baptcare Ltd T/A Baptcare Karingal Community Care

[2024] FWC 3160

[2024] FWC 3160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Baptcare Ltd T/A Baptcare Karingal Community Care

(B2024/1465)

COMMISSIONER CONNOLLY MELBOURNE, 15 NOVEMBER 2024

Proposed protected action ballot of employees of Baptcare Ltd.

1. 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 Baptcare Ltd trading as Baptcare Karingal Community Care (Baptcare or Employer).

1. On 13 November 2024, the Commission was advised that the Employer objected to proposed questions in the application and sought further information from the Applicant.  The objections related to questions concerning proposed stoppages of work and/or clarification of the particulars of relevant protected industrial action.  In support of its objection, the Respondent made the following submission, stating that the proposed action:

“…will have a devastating impact on our ability to provide a guaranteed level of care, more importantly our clinical governance…… Karingal Community Care has 108 elderly residents who require various levels of care…”.

1. In receipt of this objection, I listed the matter for a Hearing at 10:00am on Friday, 15 November 2024. Neither party made additional submissions in advance of this listing.

Hearing & Submissions of the Parties 

1. A Hearing was convened on Friday, 15 November 2024.  

1. Ms Buckett appeared for the ANMF and indicated ANMF relies on the material filed and its amended application, 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 Baptcare.

1. Ms S Baker, Ms P Dlamini and Mr T Baxter appeared for the Respondent, providing further submissions addressing their concerns and identifying a further objection with regards to ambiguity with the questions of concern. The HSU – Tasmania was also in attendance.

1. The ANMF indicated its sensitivity to the concerns raised by the Respondent and provided assurances to address these concerns, along with an amended application form and proposed order.

1. There is no dispute the application has been made under s.437 of the Act.  Nor are there are other grounds of objection relied upon by the Respondent. 

Consideration

1. In respect of the grounds of objection, the AMNF has provided an amended application and amended draft order that has been the subject of discussion between the parties.   The amended forms clarify the questions of concern to the Respondent.

1. As the Applicant has identified, s.443 of the Act sets out when the Commission must make a protected ballot order as follows:

“443 When the FWC must make a protected ballot order

(1)   The FWC must make a protected ballot order in relation to a proposed enterprise agreement if:

(a)an application has been made under 437; and

(b)the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

1. This being the case, and on the basis of the material before me, including the declaration of Emily Shepherd, 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 Baptcare, 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.

1. The ballot is to be conducted by Vero Engagement and 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.

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

1. An Order has been separately issued in PR781285.

1. In due course, my Chambers will take the steps necessary to conduct the s.448A compulsory conciliation conference.  An Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference will be issued.  It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations

COMMISSIONER

[1] This is, in effect, 11 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

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