Australian Nursing and Midwifery Federation v Maitland Private Hospital Pty Ltd

[2023] FWC 472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Maitland Private Hospital Pty Ltd

(B2023/162)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Maitland Private Hospital 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 Maitland Private Hospital 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 PR751183.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation – New South Wales Branch (the Applicant) filed an application under section 437 of the Fair Work Act 2009 seeking an order for a protected action ballot in relation to certain employees of Maitland Private Hospital Pty Ltd (the Respondent). The matter was heard by Vice President Catanzariti of the Fair Work Commission in Sydney on 24 February 2023. The application was made due to the Applicant’s assertion that it had been genuinely attempting to negotiate with the Respondent but had been unable to reach an agreement. The Respondent did not oppose the application, and the matter was determined on the papers without a hearing.

The primary legal issue before the Commission was whether the Applicant had satisfied the statutory requirements for a protected action ballot under the Fair Work Act 2009. Specifically, the Commission needed to determine if the notification time for the proposed agreement had been met and if the Applicant had genuinely been trying to reach an agreement with the Respondent. The statutory declaration of Cameron Maxwell Stockley Smith of the Applicant, along with other materials submitted, provided evidence of the Applicant's efforts in bargaining with the Respondent. The Commission needed to assess the sufficiency of this evidence to satisfy the conditions set out in section 443(1) of the Act.

After reviewing the materials presented, Vice President Catanzariti concluded that the Applicant had met the statutory requirements for a protected action ballot. The Vice President found that the notification time had been met and that the Applicant had genuinely attempted to reach an agreement with the Respondent. Consequently, the Commission issued an Order in PR751183, permitting the Applicant to proceed with the protected action ballot as requested. This decision underscores the importance of adhering to the legislative framework when seeking protected action ballot rights, ensuring that all statutory requirements are thoroughly met and properly evidenced.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established