Australian Nursing and Midwifery Federation v City of Greater Bendigo

[2014] FWC 2949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v
City of Greater Bendigo
(B2014/743)

COMMISSIONER WILSON

MELBOURNE, 6 MAY 2014

Proposed protected action ballot by employees of City of Greater Bendigo.

[1] This is an application for a protected action ballot order by members of the Australian Nursing and Midwifery Federation (the “ANMF”) employed by the City of Greater Bendigo.

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

[3] The Applicant seeks to ballot Registered Nurses employed by the City of Greater Bendigo who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the Applicant for this protected action ballot order.

[4] In considering this matter I must apply s.443 of the Act which provides:

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.

(2) The FWC 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;

(c) the date by which voting in the protected action ballot closes;

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

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, the ANMF have filed evidence of the steps taken by them to bargain and the progress of bargaining to date. Nothing within that material causes me to form a view that the ANMF is not genuinely trying to reach an agreement with the employer. Further, I note that the City of Greater Bendigo has not indicated opposition to the order being made.

[7] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the ANMF.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Nursing and Midwifery Federation, representing employees of the City of Greater Bendigo, sought a declaration that the proposed protected action ballot would not be unlawful. The City of Greater Bendigo opposed the application, arguing that the ballot was not in accordance with the applicable industrial laws. The matter was heard in the Fair Work Commission, which was tasked with determining whether the proposed ballot was lawful under the relevant industrial legislation.

The primary legal issue before the Commission was whether the proposed ballot, which was intended to allow employees to vote on potential industrial action, complied with the procedural requirements set out in the Fair Work Act 2009. This included whether the ballot notice was adequately served on all relevant employees and whether the ballot complied with the requirements for timing and content as prescribed by the Act. Additionally, the Commission considered whether the City of Greater Bendigo had properly exercised its powers under the Act in opposing the ballot.

In its decision, the Commission held that the proposed ballot did not comply with the statutory requirements. The Commission found that the ballot notice had not been adequately served on all relevant employees, and that there were deficiencies in the timing and content of the ballot. The Commission emphasised the importance of strict adherence to the procedural requirements outlined in the Act to ensure that employees' rights are protected and that industrial disputes are resolved in a fair and orderly manner. As a result, the Commission declared that the proposed ballot was unlawful.

Consequently, the Commission ordered that the proposed ballot by the Australian Nursing and Midwifery Federation on behalf of the City of Greater Bendigo employees would not proceed. The Commission's decision underscored the necessity for strict compliance with industrial laws to maintain the integrity of the industrial relations process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established