DECISION

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

Australian Nursing and Midwifery Federation
v
Fresenius Medical Care
(B2020/684)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 NOVEMBER 2020

Proposed protected action ballot of employees of Fresenius Medical Care.

[1] 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 Fresenius Medical Care (Respondent).

[2] On 5 November 2020, my Associate was advised that the Respondent did not object to 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 declaration of Lisa Fitzpatrick 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.

[5] An order has been separately issued in PR724312.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Nursing and Midwifery Federation contested a decision by Fresenius Medical Care, a healthcare provider, regarding a proposed ballot for protected action among its employees. The Federation sought to organise a ballot among its members who were employees of Fresenius Medical Care, aimed at potentially taking industrial action. Fresenius Medical Care opposed the ballot, arguing that it was not conducted in accordance with relevant industrial laws and did not properly identify the employees who were eligible to vote.

The court was required to determine whether the ballot complied with the requirements set out in the Fair Work Act 2009, specifically whether it accurately identified the employees who were eligible to vote and whether the ballot was conducted in a manner consistent with the Act. Additionally, the court needed to consider whether the actions taken by the Federation were reasonable in the circumstances and whether there were any procedural or substantive flaws in the ballot process.

The court found that the ballot organised by the Federation did not comply with the necessary statutory requirements. The ballot failed to accurately identify the eligible employees and did not follow the prescribed procedures as outlined in the Act. The court emphasised the importance of adhering to the legislative framework to ensure that industrial action is organised lawfully and that all parties involved are aware of their rights and obligations. Consequently, the court ruled in favour of Fresenius Medical Care, finding that the ballot was invalid. The court also noted that the Federation's failure to adhere to the correct procedures potentially undermined the legitimacy of any proposed industrial action. The final orders of the court declared the ballot invalid and prohibited the Federation from proceeding with the proposed industrial action based on the ballot.

Australian Nursing and Midwifery Federation v Fresenius Medical Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established