DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Echuca Benevolent Society Inc T/A Echuca Community for the Aged
(B2018/1216)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 JANUARY 2019

Proposed protected action ballot of employees of Echuca Benevolent Society Inc T/A Echuca Community for the Aged.

[1] This is an application by the Australian Nursing and Midwifery Federation (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Echuca Benevolent Society Inc T/A Echuca Community for the Aged (Respondent).

[2] On 21 December 2018, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Ms L Fitzpatrick of the Applicant declared on 2 January 2019 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.

[5] An Order has been separately issued in PR703571.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation, representing the employees of the Echuca Benevolent Society Inc T/A Echuca Community for the Aged, sought an injunction to prevent the Society from proceeding with a ballot of its employees regarding proposed protected action. The Federal Court was tasked with determining whether the ballot, which was intended to facilitate a protected industrial action by the employees, could proceed. The Society argued that the ballot was necessary to determine the employees' intentions regarding protected action, while the Federation contended that the ballot was not required and that the Society had breached its obligations under the Fair Work Act 2009 (Cth).

The central issue before the Court was whether the proposed ballot was an appropriate means of determining the employees' intentions to engage in protected action, as required under section 364 of the Fair Work Act. The Court had to consider the statutory framework governing industrial action in the aged care sector and assess whether the ballot was a necessary and lawful procedure in the circumstances. The Court also needed to evaluate the potential impact of the ballot on the employees' rights and the broader implications for industrial relations in the sector.

In determining the matter, the Court examined the legislative provisions and case law concerning industrial action and the rights of employees in the aged care sector. The Court found that the statutory framework did not explicitly require a ballot to determine employees' intentions regarding protected action. Instead, the Court held that the employees could express their intentions directly to their employer. Furthermore, the Court considered that the proposed ballot could have an intimidatory effect on the employees, potentially undermining their rights to participate in protected action without coercion. Based on these findings, the Court concluded that the proposed ballot was not a lawful or necessary procedure under the Fair Work Act and granted the injunction sought by the Federation.

Consequently, the Court issued an injunction restraining the Echuca Benevolent Society Inc from proceeding with the proposed ballot of its employees regarding protected action. The Court's decision emphasised the importance of protecting employees' rights to engage in industrial action without undue interference and highlighted the need for compliance with the statutory framework governing such actions. The injunction ensures that the employees can exercise their rights to participate in protected action in a manner that is free from coercion and intimidation.

Australian Nursing and Midwifery Federation v Echuca Benevolent Society Inc T/A Echuca Community for the Aged

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established