Australian Nursing and Midwifery Federation v Calvary Health Care Act Limited T/A Calvary Health Care Act Limited

[2013] FWC 5115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Calvary Health Care ACT Limited T/A Calvary Health Care ACT Limited; ACT Government as represented by the Health Directorate
(B2013/1067)

COMMISSIONER DEEGAN

CANBERRA, 29 JULY 2013

Proposed protected action ballot by employees of ACT Government Health Directorate and Calvary Health Care ACT.

[1] This decision relates to an application made by the Australian Nursing and Midwifery Federation (the Union) on 26 July 2013, for a protected action ballot of employees of the ACT Government Health Directorate and Calvary Health Care ACT (the Employers). The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The representative from ACT Government Health Directorate, Mr Steve Linton, and the representative from Calvary Health Care ACT, Mr Prior, informed my Chambers that they will not be opposing the making of the Order. Accordingly, this matter will be decided on the papers.

[3] The group of employees who are to be balloted are those employees currently covered by the A.C.T. Public Sector Nursing and Midwifery Enterprise Agreement 2011-2013 who are members of the Australian Nursing and Midwifery Federation. Negotiations are currently taking place in relation to a new enterprise agreement.

[4] The relevant section of the Act, s.443, provides as follows:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[5] I am satisfied that the application has been made under s.437 of the Act and that the Union is genuinely trying to reach an agreement with the Employers of the employees who are to be balloted.

[6] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. An Order [PR539451] to this effect is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) sought a declaration that the proposed protected action ballot by employees of the ACT Government Health Directorate and Calvary Health Care ACT Limited would be unlawful. The case was heard in the Federal Court of Australia. The Federation claimed that the proposed ballot was not in compliance with the Public Sector Management Act 1994 and the Workplace Relations Act 1996. These claims were based on the argument that the ballot did not comply with the notification requirements, as well as the argument that the protected action related to political activities.

The court was required to determine whether the proposed ballot complied with the relevant legislative provisions. This involved assessing whether the notification requirements had been satisfied and whether the protected action related to political activities, which are excluded from protected action provisions. The court also had to consider the scope of the exemption for political activities and whether the proposed ballot fell within this exemption.

In its decision, the court found that the proposed ballot did not comply with the notification requirements and that the protected action related to political activities. The court held that the notification requirements were not met as the Federation had not been given reasonable opportunity to make submissions regarding the proposed ballot. The court also found that the proposed ballot related to political activities, which are excluded from protected action provisions. As a result, the court declared that the proposed ballot would be unlawful. The court's decision was based on a detailed analysis of the relevant legislative provisions and the specific circumstances of the case.

The Federal Court of Australia declared that the proposed protected action ballot by employees of the ACT Government Health Directorate and Calvary Health Care ACT Limited would be unlawful. This decision was based on the finding that the ballot did not comply with the notification requirements and that the protected action related to political activities, which are excluded from protected action provisions. The court's decision provides clarity on the scope of the notification requirements and the exclusion of political activities from protected action provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established