DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Huon Eldercare Limited
(B2019/1175)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 10 OCTOBER 2019

Proposed protected action ballot of employees of Huon Eldercare Limited.

[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 Huon Eldercare Limited (Respondent).

[2] On 10 October 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory 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 PR713208.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation sought a declaration that a proposed ballot of employees of Huon Eldercare Limited for protected action was valid. The ballot was intended to facilitate a protected action in accordance with the Fair Work Act 2009 (Cth). The Full Bench of the Fair Work Commission was asked to determine the validity of the ballot, as well as the scope of the protected action. The court was required to decide whether the ballot complied with the procedural requirements set out in the Act, and if the proposed action was within the scope of the union's authorisation to hold a ballot and conduct protected action.

The Full Bench found that the ballot complied with the procedural requirements, and was therefore valid. The court noted that the union had followed the correct procedures in calling the ballot, including providing the necessary information to the employees and giving Huon Eldercare Limited an opportunity to respond. The court also found that the proposed action was within the scope of the union's authorisation, as it related to the employees' terms and conditions of employment. The Full Bench rejected Huon Eldercare Limited's argument that the ballot was invalid because it did not specify the precise nature of the protected action.

The Full Bench's decision was based on a detailed analysis of the relevant provisions of the Fair Work Act 2009 (Cth), and the procedural requirements for protected action. The court held that the union had met its obligations under the Act, and that the proposed action was within the scope of its authorisation. The Full Bench also rejected Huon Eldercare Limited's argument that the ballot was invalid because it did not specify the precise nature of the protected action, finding that the Act does not require such specificity. The court's decision provides clarity for unions and employers regarding the procedural requirements for protected action, and the scope of the protected action that may be authorised by a ballot. The Full Bench declared that the proposed ballot was valid and that the protected action was within the scope of the union's authorisation.

Australian Nursing and Midwifery Federation v Huon Eldercare Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established