Australian Nursing and Midwifery Federation v Bolton Clarke T/A Bolton Clarke Allity McKenzie Aged Care

[2024] FWC 1503

[2024] FWC 1503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Bolton Clarke T/A Bolton Clarke Allity McKenzie Aged Care

(B2024/729)

COMMISSIONER DURHAM BRISBANE, 7 JUNE 2024

Proposed protected action ballot of employees of Bolton Clarke

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 (PABO)_in relation to certain employees of Bolton Clarke (BC or Employer).

1. On 5 June 2024, the Commission was advised that the Employer, in effect, did object to the Application.

1. On 6 June 2024, my Chambers emailed the parties seeking the Employer’s views on whether they intend to contest the PABO. Further noting that I have listed the matter for a conference on 7 June 2024 to discuss the matter further with the parties. The email also foreshadowed that I would issue directions and list the matter for hearing on 10 June 2024 in the event a resolution could not be reached during the conference.

1. On 7 June 2024, the ANMF and Employer emailed my Chambers advising that discussion has been held overnight and that a resolution had been reached. The ANMF provided amended draft orders in line with what was agreed between the parties. My Chamber subsequently sought confirmation from the Employer on whether they were satisfied with the amended draft orders and did not intend to continue to oppose the application.

1. On the same day, the Employer responded confirming they withdrew their opposition of the Application and that they did not seek to raise any objections at the conference that morning. As such, I vacated the conference.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing, based on the revised draft order. 

1. On the basis of the material before me, including the declaration of Lisa Fitzpatrick, 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 it, 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 & 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 1 July 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of 5 working days applies to the questions 21 to 25 inclusive listed within Clause five (5) of the Order. 

1. An Order has been separately issued in PR775818.

1. This matter will be assigned to another 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 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.

COMMISSIONER

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