Australian Nursing and Midwifery Federation v Healthe Care North Gosford Pty Ltd Summary

[2023] FWC 467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Healthe Care North Gosford Pty Ltd

(B2023/159)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Gosford Private Hospital

This is an application by the Australian Nursing and Midwifery Federation – New South Wales Branch (ANMF NSW) (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 North Gosford 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 PR751162.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation, New South Wales Branch (ANMF NSW) filed an application under section 437 of the Fair Work Act 2009, seeking permission to conduct a protected action ballot for certain employees of Healthe Care North Gosford Pty Ltd. The matter was heard by Vice President Catanzariti in the Fair Work Commission on 24 February 2023. The Respondent did not oppose the application, prompting the Commission to determine the matter without a hearing.

The primary legal issue before the Commission was whether the conditions outlined in section 437 of the Fair Work Act were satisfied, allowing for a ballot to proceed. Specifically, the ANMF NSW had to demonstrate that it had engaged in good-faith bargaining with the Respondent and that the requisite notification period had elapsed. The application also needed to meet the criteria set out in section 443(1) of the Act.

The Vice President found that the ANMF NSW had fulfilled the statutory requirements, based on the evidence provided, including a statutory declaration by Cameron Maxwell Stockley Smith. The declaration detailed the bargaining process and affirmed the union's genuine attempts to reach an agreement with the employer. The Vice President was satisfied that the notification period had been met and that all procedural requirements had been adhered to. Consequently, the application for a protected action ballot was granted.

The Fair Work Commission issued an Order permitting the ANMF NSW to proceed with the ballot as requested. This decision ensures that the employees can be informed and involved in the decision-making process regarding potential protected actions, upholding the principles of fair work legislation.

Australian Nursing and Midwifery Federation v Healthe Care North Gosford Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established