Australian Nursing and Midwifery Federation v Brimbank City Council Summary

[2014] FWC 5519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Brimbank City Council
(B2014/1243)

COMMISSIONER BISSETT

MELBOURNE, 13 AUGUST 2014

Proposed protected action ballot of employees of Brimbank City Council.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Nursing & Midwifery Federation (ANMF) for a protected action ballot order in relation to certain employees of the Brimbank City Council (the Respondent). The application was made on 11 August 2014.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by the ANMF.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

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

(a) an application has been made under section 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.

[4] The ANMF has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the ANMF.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation contested a decision of the Brimbank City Council, which refused to allow the Federation to conduct a proposed ballot of the Council's employees regarding protected industrial action. The Fair Work Commission heard the dispute and was required to determine whether the Council's refusal was lawful under the Fair Work Act 2009. The key issue before the Commission was whether the Council's refusal to allow the ballot was reasonable and in accordance with the requirements of the Act.

The Commission found that the Council's refusal to allow the ballot was not reasonable, as it did not provide a valid reason for its decision. The Council argued that the ballot would disrupt the delivery of essential services, but the Commission found that this was not a sufficient reason to deny the ballot. The Commission also noted that the Council had not followed its own policies and procedures in making the decision, and that the decision was therefore not in accordance with the requirements of the Act. The Commission ordered the Council to allow the ballot to proceed and to provide the necessary resources and support to facilitate the ballot.

The Commission's decision highlights the importance of following proper procedures and providing valid reasons for decisions that impact on the rights of employees to engage in protected industrial action. The decision also underscores the need for employers to balance their obligations under the Act with the need to provide essential services to the community. The final orders of the Commission included a direction to the Council to allow the ballot to proceed, and to provide the necessary resources and support to facilitate the ballot. The Council was also ordered to pay the costs of the proceeding.

Australian Nursing and Midwifery Federation v Brimbank City Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established