Australian Nursing and Midwifery Federation v Hobart Day Surgery Pty Ltd Summary

[2024] FWC 2054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Hobart Day Surgery Pty Ltd

(B2024/977)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 AUGUST 2024

Proposed protected action ballot of employees of Hobart Day Surgery Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation (ANMF or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Hobart Day Surgery Pty Ltd (Hobart Day Surgery or Employer).

On 2 August 2024, the Commission was advised that the Employer, in effect, did not object to 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 declaration of Emily Shepherd, Branch Secretary, setting out the steps taken by the ANMF in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Hobart Day Surgery, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 19 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777780.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 11 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) sought a protected action ballot order against Hobart Day Surgery Pty Ltd (Hobart Day Surgery) under section 437 of the Fair Work Act 2009. The dispute involved certain employees of the Hobart Day Surgery, and the application was made to allow for a ballot to be conducted regarding potential protected actions. The employer did not object to the application, leading the Fair Work Commission to proceed with the determination on the submitted documents without a hearing.

The primary legal issue before the Deputy President Hampton was whether the conditions stipulated in section 443 of the Fair Work Act were met for the ballot to proceed. The Act requires a notification period and evidence that the union has genuinely attempted to reach an agreement with the employer. The application included a declaration from Emily Shepherd, Branch Secretary of the ANMF, outlining the union's efforts in bargaining with the employer and confirming that all requirements under the Act had been satisfied.

The Deputy President Hampton was satisfied that the notification period was appropriate and that all procedural requirements had been met based on the provided material. Vero Engagement & Voting Solutions Pty Ltd, an approved ballot agent, would conduct the ballot. The Commission set the closing date for voting as 19 August 2024, effectively establishing the ballot period. The matter will subsequently be referred to another Commission member for a compulsory conciliation conference to facilitate further negotiations.

An order has been issued to conduct the conciliation conference, requiring the attendance of all bargaining representatives. The Commission will likely issue directions to ensure that the parties are prepared to engage in meaningful negotiations. This decision ensures that the process adheres to the legislative framework and provides a structured pathway for resolving the ongoing dispute between the union and the employer.

Australian Nursing and Midwifery Federation v Hobart Day Surgery Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established