Australian Nursing and Midwifery Federation v Brisbane Waters Private Hospital Pty Ltd Summary

[2023] FWC 463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Brisbane Waters Private Hospital Pty Ltd

(B2023/157)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Brisbane Waters Private Hospital Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Brisbane Waters Private Hospital Pty Ltd (Respondent).

On 23 February 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Cameron Maxwell Stockley Smith of the Applicant declared on 22 February 2023, 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.

An Order has been separately issued in PR751150.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANM) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 to hold a protected action ballot for certain employees of Brisbane Waters Private Hospital Pty Ltd. The application was made in the context of ongoing negotiations between the ANM and the hospital over a proposed agreement. The hospital did not oppose the application, resulting in the matter being determined on the basis of the provided documents without the need for a hearing.

The primary legal issue before the Commission was whether the ANM had met the criteria for a protected action ballot, specifically that there was a notification time in relation to the proposed agreement and that the requirements of section 443(1) of the Act were satisfied. The ANM asserted that it had genuinely been attempting to reach an agreement with the hospital and had taken all necessary steps to do so. The hospital's lack of opposition to the application further facilitated the Commission's consideration of the matter.

The Fair Work Commission, after reviewing the statutory declaration from Cameron Maxwell Stockley Smith of the ANM and the other documentation, found that the ANM had indeed met the statutory requirements for a protected action ballot. The Vice President concluded that there was a notification time in relation to the proposed agreement, and that the ANM had genuinely been trying to reach an agreement with the hospital. As such, the application was successful, and an order was made to permit the ballot to proceed.

The final orders of the Fair Work Commission allowed the ANM to conduct the protected action ballot as requested. This decision underscores the Commission's role in facilitating fair negotiations and protecting the rights of employees to organise and engage in protected industrial action when necessary.

Australian Nursing and Midwifery Federation v Brisbane Waters Private Hospital Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established