Australian Nursing and Midwifery Federation v Maribyrnong City Council

[2023] FWC 634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Maribyrnong City Council

(B2023/249)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 MARCH 2023

Proposed protected action ballot of employees of Maribyrnong City Council

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 Maribyrnong City Council (Respondent).

On 16 March 2023, my Associate was advised that the Respondent did not object to 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 declaration of Ms Lisa Fitzpatrick 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.

An order has been separately issued in PR760340.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) lodged an application with the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of Maribyrnong City Council (MCC). The application was made to facilitate a potential protected action, likely a strike, by the employees in pursuit of better working conditions or terms of employment. The MCC did not object to the application, leading the Deputy President to determine the matter on the basis of the submitted documents without necessitating a hearing.

The central legal issue before the FWC was whether the conditions set out in section 443(1) of the Act were met, ensuring the ANMF had genuinely attempted to reach an agreement with MCC. This included verifying that the union had engaged in good-faith bargaining and that there was a notification period for the proposed agreement. The Deputy President had to assess whether the ANMF's actions and the content of the proposed agreement complied with the statutory requirements for initiating a protected action ballot.

Upon reviewing the evidence, including the declaration from Ms Lisa Fitzpatrick of the ANMF, the Deputy President concluded that the union had indeed been genuinely attempting to reach an agreement with MCC. The evidence provided by the ANMF demonstrated that the union had followed the necessary steps in bargaining and that there was a notification time in place as required by the Act. Consequently, the Deputy President was satisfied that the prerequisites for the protected action ballot were fulfilled, and the application was approved. The FWC issued an order in PR760340 to this effect.

The FWC's decision highlights the importance of adhering to the legislative framework when seeking to organise a protected action. The Deputy President's ruling underscores the necessity for unions to engage in genuine bargaining efforts and to comply with notification periods, ensuring that the rights of both employers and employees are protected within the legal boundaries set by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established