Australian Nursing and Midwifery Federation v DPG Services Pty Ltd T/A Opal Healthcare

[2024] FWC 2091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

DPG Services Pty Ltd T/A Opal Healthcare

(B2024/994)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 AUGUST 2024

Proposed protected action ballot of employees of DPG Services Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation (ANMF or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of DPG Services Pty Ltd trading as Opal Healthcare (Opal or Employer).

On 6 August 2024, the Commission was advised that the Employer, in effect, 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 Sarah Gardner, Manager, Organising Private Hospitals and Aged Care, 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 Opal, 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 TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 23 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777930.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement 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] This is, in effect, 14 days from the anticipated commencement of the ballot and was period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of DPG Services Pty Ltd, trading as Opal Healthcare. The applicant sought to conduct the ballot to explore the possibility of industrial action in response to ongoing negotiations for an enterprise agreement. The employer did not object to the application, resulting in the decision being made on the papers without a formal hearing. The matter was heard in the Fair Work Commission by Deputy President Hampton, who was tasked with determining the validity of the ballot application and setting the voting period.

The legal issues at hand primarily revolved around whether the ANMF had genuinely attempted to reach an agreement with the employer and whether all the statutory requirements for conducting a protected action ballot had been met. The applicant had to demonstrate that it had taken all necessary steps to negotiate in good faith and that there was a notification time in relation to the proposed agreement. Additionally, the court had to confirm that the designated ballot agent, TrueVote Pty Ltd, was approved and authorised under the Act to conduct the ballot.

The Deputy President was satisfied that the ANMF had genuinely tried to reach an agreement and that all requirements under section 443(1) of the Act were fulfilled. The court acknowledged the declaration of Sarah Gardner, the Manager, Organising Private Hospitals and Aged Care, which outlined the bargaining efforts of the ANMF. The Deputy President also confirmed that TrueVote was an approved ballot agent under section 468A of the Act. Consequently, the court determined that the voting period for the ballot would close on 23 August 2024, establishing this date as the end of the ballot period for the purposes of section 448A(2) of the Act.

An order was issued separately in PR777930, and the matter was assigned to another member of the Commission for a compulsory conciliation conference under section 448A. This member would issue an order requiring the attendance of all bargaining representatives in the proposed enterprise agreement and likely issue directions to ensure meaningful negotiations at the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established