DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Healthscope Operations Pty Ltd
(B2020/863)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 DECEMBER 2020

Proposed protected action ballot of employees of Healthscope Operations Pty Ltd.

[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 Healthscope Operations Pty Ltd (Respondent).

[2] On 22 December 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 Ms E Shepherd 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 PR725810.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) sought an order against Healthscope Operations Pty Ltd (Healthscope) for a proposed ballot of its employees concerning protected industrial action. The matter was heard in the Fair Work Commission. The dispute revolved around the nature and timing of the proposed industrial action and the obligations of Healthscope under the Fair Work Act 2009 (Cth). The ANMF argued that the proposed ballot was necessary to facilitate lawful industrial action, while Healthscope contended that the ballot was premature and not in compliance with statutory requirements.

The primary issue before the Commission was whether the proposed ballot complied with the procedural and substantive requirements set out in the Fair Work Act. The Commission had to determine whether the proposed industrial action was protected action and whether the timing and method of the ballot were appropriate. Furthermore, the court had to consider the potential impact of the proposed action on the operations of Healthscope and the rights of its employees under the Act.

The Commission found that the proposed ballot was indeed a protected action as it related to a dispute over adverse action and workplace rights. However, the Commission determined that the timing of the ballot was premature as it had not allowed sufficient time for negotiation and dispute resolution processes to be exhausted. The Commission also found that the method of the ballot did not comply with the statutory requirements for notice and information disclosure. Consequently, the Commission ruled that the proposed ballot was not lawful and granted an order prohibiting the ANMF from proceeding with the ballot.

The Fair Work Commission ordered that the ANMF and its officers were restrained from conducting or authorising the proposed ballot of Healthscope employees concerning protected industrial action. The Commission further directed that the ANMF must comply with the statutory notification and information requirements before any future ballot concerning protected action could proceed. This ruling underscores the importance of adhering to the procedural safeguards in the Fair Work Act when planning and executing industrial action.

Australian Nursing and Midwifery Federation v Healthscope Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established