Australian Nursing and Midwifery Federation v Calvary Health Care Tasmania Limited

[2023] FWC 1884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Calvary Health Care Tasmania Limited

(B2023/769)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 1 AUGUST 2023

Proposed protected action ballot of employees of Calvary Health Care Tasmania Limited

This is an application by the Australian Nursing and Midwifery Federation (ANMF) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Calvary Health Care Tasmania Limited (Calvary or Employer).

On 1 August 2023, the Commission was advised that Calvary, in effect, did not object to the Application, subject to amendments being made to the proposed ballot questions. These amendments were made by the ANMF on 1 August 2023, and a revised draft order was provided to both the Commission and Calvary.

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

On the basis of the material before me, including the declaration of Ms Emily Shepherd, ANMF Branch 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 Calvary, 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.

The ballot is to be conducted by the Vero Engagement & Voting Systems Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has recently been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of twelve (12) working days from the date of the Order (1 August 2023) has been determined by the Commission. I observe that this is, in effect, the same ballot period proposed[2] in the draft Order.

The draft Order was also slightly amended to address some minor obvious errors.[3]

An Order has been separately issued in PR764734.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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.

DEPUTY PRESIDENT

[1] Vero Engagement & Voting Solutions T/A Vero Voting [2023] FWC 1531.

[2] The draft order proposed for the protected action ballot to close on 16 August 2023.

[3] Changes were made to Clauses 3, 5 and 8.2.2.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order permitting a protected action ballot among certain employees of Calvary Health Care Tasmania Limited (Calvary). This application followed the ANMF's efforts to reach an agreement with Calvary for a proposed agreement. The Commission was informed on 1 August 2023 that Calvary did not object to the application, provided that certain amendments were made to the proposed ballot questions. These amendments were made by the ANMF on the same day, and a revised draft order was provided to both the Commission and Calvary. Given these circumstances, the Deputy President Hampton decided to determine the matter on the papers without holding a hearing.

The legal issues that the court needed to decide included whether the notification period for the proposed agreement existed and whether all requirements under section 443(1) of the Act had been met. The court had to examine the declaration of Ms Emily Shepherd, ANMF Branch Secretary, which outlined the steps taken by the ANMF in bargaining with the employer and confirmed that the ANMF had been genuinely trying to reach an agreement with Calvary. Another issue was the determination of the ballot period, which had to comply with sections 443(3)(c) and 448A(2) of the Act.

After reviewing the material before it, including the declaration of Ms Shepherd, the court found that a notification time in relation to the proposed agreement existed and that all of the requirements under section 443(1) of the Act had been met. The court also approved the ballot period of twelve working days from the date of the order, which was 1 August 2023. Vero Voting, the proposed ballot agent, was authorised to conduct the ballot as it had been recently approved as an eligible agent under section 468A of the Act. The draft order was amended to address some minor errors before it was approved by the court.

The final order, issued in PR764734, allowed for the protected action ballot to proceed. Another Member of the Commission was assigned to conduct the compulsory conciliation conference under section 448A, and directions were issued to ensure that the parties attended the conference ready to conduct meaningful negotiations. This decision highlights the importance of the negotiation process and the role of the Fair Work Commission in facilitating agreements between employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established