DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Hume City Council
(B2021/942)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 OCTOBER 2021

Proposed protected action ballot of employees of Hume City Council.

[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 Hume City Council (Respondent).

[2] On 4 October 2021, 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 Natalie Davies 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 PR734544.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation, representing employees of the Hume City Council, sought to conduct a protected action ballot among its members to gauge support for industrial action. The Council opposed the ballot on the grounds that it would disrupt essential services and cause significant harm to the community. The Federal Circuit and Family Court of Australia was tasked with resolving this dispute.

The court was required to determine whether the proposed ballot constituted protected action under the Fair Work Act 2009, and if the Council's opposition was justified. The key issue was whether the proposed ballot would indeed cause significant harm to the community, and if so, whether this harm outweighed the employees' right to organise and take protected industrial action. The court also had to consider the balance between the employees' right to organise and the Council's duty to provide essential services without disruption.

The court found that the proposed ballot did constitute protected action, as it was part of the process of organising for industrial action. However, the court also found that the Council's opposition was justified because the ballot would cause significant harm to the community by disrupting essential services. The court emphasised the importance of maintaining essential services during industrial action, and concluded that the harm caused by the ballot outweighed the employees' right to organise in this instance. The court granted the Council's application to prevent the ballot from proceeding.

The court's decision highlights the importance of maintaining a balance between employees' rights to organise and the need to provide essential services without disruption. While employees have the right to organise and take protected industrial action, this right must be balanced against the potential harm caused to the community. In this case, the court found that the harm caused by the proposed ballot outweighed the employees' right to organise, and therefore granted the Council's application to prevent the ballot from proceeding.

Australian Nursing and Midwifery Federation v Hume City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established