Australian Nursing and Midwifery Federation v Diabetes Victoria Summary

[2023] FWC 1075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation

Diabetes Victoria

(B2023/407)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 MAY 2023

Proposed protected action ballot of employees of Diabetes Victoria.

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

On 6 May 2023, my Associate was advised that the Respondent did not object to 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 declaration of Mr Brendan Soraghan of the Applicant 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 PR761683.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (Applicant) made an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of Diabetes Victoria (Respondent). This application, identified as B2023/407, was heard by Deputy President Clancy in Melbourne on 8 May 2023. The matter was determined on the papers submitted, as the Respondent did not object to the application. The primary focus of the application was to facilitate a ballot for potential protected action by the employees, following unsuccessful negotiations between the Applicant and the Respondent.

The legal issues at the heart of this case revolved around the procedural requirements outlined in section 443(1) of the Fair Work Act 2009. The Applicant sought to ensure that all necessary steps were taken in good faith to reach an agreement with the Respondent. This included verifying that the notification period for the proposed agreement was appropriately observed and that the genuine attempt to negotiate had been upheld. The Deputy President needed to ascertain whether the application met these statutory requirements to grant the order for the protected action ballot.

Upon reviewing the material presented, including the declaration from Mr Brendan Soraghan of the Applicant, Deputy President Clancy determined that the Applicant had genuinely attempted to negotiate with the Respondent. The declaration detailed the steps taken by the Applicant in bargaining with the Respondent, confirming that the notification period for the proposed agreement had been met. Given this evidence, the Deputy President was satisfied that the requirements of section 443(1) of the Act had been fulfilled. Consequently, the application was granted, allowing the protected action ballot to proceed.

An order has been issued in PR761683, authorising the protected action ballot for the specified employees of Diabetes Victoria. This decision ensures that the employees can proceed with the ballot to explore potential protected actions in their ongoing negotiations with the Respondent.

Australian Nursing and Midwifery Federation v Diabetes Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established