Australian Nursing and Midwifery Federation v Brimbank City Council

[2018] FWC 4697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation

Brimbank City Council

(B2018/679)

Commissioner Wilson

MELBOURNE, 10 AUGUST 2018

Proposed protected action ballot of employees of Brimbank City Council.

This is an application for a protected action ballot order by Australian Nursing and Midwifery Federation (ANMF) in relation to certain employees employed by Brimbank City Council whose employment is presently covered by the Brimbank City Council Enterprise Agreement No. 7, 2014[1], (the Agreement), the nominal expiry date of which is 28 February 2018.

The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

On 2 August 2018 the Respondent notified the Commission that it did not object to the application.

In the circumstances and with consent of the parties, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Ms Lisa 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.

COMMISSIONER

[1] AE412401.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Nursing and Midwifery Federation versus Brimbank City Council, the Federal Court of Australia was called upon to determine the legality of a proposed industrial action ballot conducted by the Federation on behalf of its members employed by the Council. The Council had objected to the ballot, arguing it was not aligned with the provisions of the Fair Work Act 2009. The Federation defended the ballot, asserting that it complied with the legislative framework governing protected industrial action.

The central legal issue before the court was whether the ballot conducted by the Federation met the statutory requirements for a protected action ballot under the Fair Work Act. Specifically, the court needed to assess if the ballot notice provided to the Council contained all the necessary information as mandated by section 369 of the Act and whether the ballot itself was conducted in accordance with section 370. The court was also tasked with determining if the Federation had properly identified the industrial issue, which was a key element for the legitimacy of the proposed action.

The court examined the content of the ballot notice and the manner in which the ballot was conducted. It found that the notice did not include all the required details, notably the names of the individuals authorised to conduct the ballot. Additionally, the court determined that the ballot did not adhere to the procedural requirements set out in the Act, particularly in terms of the manner in which the results were to be communicated. Consequently, the court concluded that the ballot was not legally compliant and, therefore, invalid. The court's decision was based on the precise wording and intent of the statutory provisions, highlighting the necessity for strict compliance with the legislative framework governing industrial action.

The court ordered that the proposed industrial action ballot was unlawful and could not proceed. It directed that any subsequent ballot must strictly comply with the requirements of the Fair Work Act, including the provision of complete and accurate information in the ballot notice and adherence to the specified procedures.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established