Australian Nursing and Midwifery Federation v Hurstville Private Pty Ltd Summary

[2023] FWC 468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Hurstville Private Pty Ltd

(B2023/160)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Hurstville Private Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation – New South Wales Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Hurstville Private Pty Ltd (Respondent).

On 23 February 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Cameron Maxwell Stockley Smith of the Applicant declared on 22 February 2023, 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.

An Order has been separately issued in PR751166.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has heard an application by the Australian Nursing and Midwifery Federation, New South Wales Branch, for an order under section 437 of the Fair Work Act 2009, allowing a protected action ballot for certain employees of Hurstville Private Pty Ltd. The application was made in light of ongoing negotiations for a new enterprise agreement. The employer, Hurstville Private Pty Ltd, did not oppose the application, leading the Commission to decide on the matter without a formal hearing.

The legal issue at the heart of this case was whether the conditions for a protected action ballot, as stipulated in section 443 of the Fair Work Act 2009, were met. This included verifying that the union had genuinely attempted to reach an agreement with the employer and that a notification period for the proposed agreement had been observed. The Commission had to determine if the union had complied with these requirements based on the provided documentation and declarations.

After reviewing the materials submitted, including a statutory declaration by Cameron Maxwell Stockley Smith of the Applicant, the Vice President concluded that the union had indeed been genuinely trying to reach an agreement and that the notification time for the proposed agreement had been adhered to. Consequently, the Vice President was satisfied that the conditions for granting the ballot order were met. This decision allows the union to proceed with the ballot under the protection of the Fair Work Act, ensuring the process is conducted within legal frameworks that safeguard the rights of both employees and employers.

The Fair Work Commission issued an Order allowing the protected action ballot to proceed, as requested by the union. This decision ensures that the process is conducted within the legal boundaries set by the Fair Work Act, protecting the rights of the employees and the employer throughout the negotiation process.

Australian Nursing and Midwifery Federation v Hurstville Private Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established