Australian Nursing and Midwifery Federation v Forster Private Hospital Pty Ltd

[2023] FWC 465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Forster Private Hospital Pty Ltd

(B2023/158)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Forster Private Hospital Pty Ltd

This is an application by Australian Nursing and Midwifery Federation – New South Wales Branch (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 Forster Private Hospital Pty Ltd (Respondent).

On 23 February 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Cameron Maxwell Stockley Smith of the Applicant declared on 22 February 2023, 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 PR751154.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation – New South Wales Branch applied to the Fair Work Commission for an order that a ballot of certain employees of Forster Private Hospital Pty Ltd could proceed. The application was made under section 437 of the Fair Work Act 2009, which allows unions to request a ballot for protected action when a bargaining process has reached an impasse. The hospital did not oppose the application.

The key legal issue for the Commission to determine was whether the union had genuinely attempted to reach an agreement with the hospital and whether the notification period for the ballot had been met. This involved reviewing the union's declaration and evidence of its bargaining efforts. The Commission also needed to ensure that the requirements of section 443(1) of the Act had been fulfilled.

After examining the materials submitted, the Vice President was satisfied that the union had genuinely tried to reach an agreement with the hospital and that the notification period had been met. The union had provided a statutory declaration outlining its bargaining efforts and the impasse with the hospital. As the hospital did not oppose the application, the Vice President decided to grant the order without holding a hearing. An order was subsequently issued allowing the ballot to proceed.

The final order was issued in PR751154, permitting the union to conduct a ballot of the hospital employees regarding the proposed protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established