DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v
Huon Regional Care Limited T/A Huon Regional Care
(B2019/1340)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 NOVEMBER 2019

Proposed protected action ballot of employees of Huon Regional Care 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 Regional Care Limited T/A Huon Regional Care (Respondent).

[2] On 22 November 2019, 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 statutory declaration of Ms E Shephard 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 PR714555.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation took Huon Regional Care Limited to the Fair Work Commission, claiming that the company had contravened sections of the Fair Work Act 2009 by not allowing the Federation to conduct a ballot of Huon's employees for protected action. The Federation sought an order requiring Huon to allow the ballot, as well as compensation and costs. Huon opposed the application, arguing that the ballot was not a genuine protected action and that the Federation had failed to provide relevant information to Huon as required by the Act.

The Commission examined whether the proposed protected action was genuinely related to the employees' employment and whether the Federation had provided the necessary information to Huon. The Commission concluded that the proposed protected action was genuine and related to the employees' employment. However, it found that the Federation had not provided Huon with the necessary information, including a copy of the proposed notice of protected action, as required by section 358(1)(b) of the Act. Despite this, the Commission determined that the failure to provide this information did not invalidate the application for an order, as the essential information had been provided.

The Commission ordered Huon to allow the ballot to proceed, as the proposed protected action was genuine and related to the employees' employment. It also ordered Huon to pay compensation and costs to the Federation. The Commission found that the failure to provide the notice of protected action did not affect the validity of the application, as the essential information had been provided to Huon. The decision highlights the importance of providing necessary information to employers when seeking to conduct a ballot for protected action, and the potential consequences of failing to do so.

Australian Nursing and Midwifery Federation v Huon Regional Care Limited T/A Huon Regional Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established