Australian Nursing and Midwifery Federation v Healthe Care Lingard Pty Ltd Summary

[2023] FWC 471

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Healthe Care Lingard Pty Ltd

(B2023/161)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Healthe Care Lingard Pty Ltd

This is an application by the 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 Healthe Care Lingard 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 PR751178.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Australian Nursing and Midwifery Federation – New South Wales Branch (Applicant) seeking a protected action ballot order in relation to certain employees of Healthe Care Lingard Pty Ltd (Respondent). The Applicant's application was made under section 437 of the Fair Work Act 2009 (Cth), seeking to facilitate a ballot for potential industrial action. The Respondent did not oppose the application, prompting the Vice President to decide the matter on the basis of the submitted documents without necessitating a hearing. The primary document in question was a statutory declaration from Cameron Maxwell Stockley Smith of the Applicant, dated 22 February 2023, which outlined the bargaining process and the Applicant's efforts to reach an agreement with the Respondent.

The legal issues at the core of this decision pertained to whether the requirements under section 443(1) of the Fair Work Act had been satisfied and whether there was an appropriate notification period for the proposed agreement. The Applicant needed to demonstrate that it had genuinely attempted to negotiate with the Respondent and that the conditions for a protected action ballot were met. The Vice President's role was to assess the validity of the application based on the evidence provided and determine if the statutory criteria were fulfilled.

The Vice President found that the statutory declaration and the accompanying materials adequately demonstrated that the Applicant had been genuinely trying to reach an agreement with the Respondent. The evidence showed that the Applicant had followed the necessary procedural steps and that there was a notification period for the proposed agreement. Based on these findings, the Vice President concluded that the requirements for a protected action ballot under section 443(1) of the Act were met. Consequently, the application was approved, and a separate order was issued in PR751178.

The Fair Work Commission's decision affirms the Applicant's right to proceed with a protected action ballot, given the established compliance with the statutory requirements. This ruling underscores the importance of adhering to the procedural guidelines set forth in the Fair Work Act and the Commission's role in ensuring that both parties engage in good faith negotiations.

Australian Nursing and Midwifery Federation v Healthe Care Lingard Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established