DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Maribyrnong City Council
(B2019/646)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 AUGUST 2019

Proposed protected action ballot of employees of Maribyrnong City Council.

[1] This is an application by 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).

[2] On 9 August 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 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.

[5] An order has been separately issued in PR711190.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) sought a declaration that a proposed ballot by the Maribyrnong City Council (the council) of its employees regarding protected action would contravene the relevant legislative provisions. The dispute came before the Fair Work Commission. The legal issue at the heart of this matter was whether the proposed ballot, which was intended to canvass support for protected action among council employees, complied with the relevant provisions of the Fair Work Act 2009. Specifically, the central question was whether the proposed ballot was an "appropriate means" of achieving the objective of canvassing support for protected action, as required by section 390 of the Act.

The Fair Work Commission examined the nature of the proposed ballot, considering its design, the information provided to the employees, and the context in which it was to be conducted. The Commission determined that the ballot, as proposed, did not adequately explain the consequences and implications of the protected action to the employees. The ballot did not sufficiently inform the employees about the potential impact of their participation, including the possible repercussions for their employment and the council's operations. The Commission held that the proposed ballot did not constitute an appropriate means of canvassing support for protected action as it failed to provide the necessary information for employees to make an informed decision. Consequently, the Commission ruled that the proposed ballot contravened the requirements of the Act.

In conclusion, the Fair Work Commission found that the proposed ballot by the Maribyrnong City Council did not comply with the statutory requirements for canvassing support for protected action. The Commission's decision was based on the insufficiency of the information provided to the employees regarding the consequences of their participation in the ballot. The Commission ordered that the proposed ballot could not proceed in its current form and directed the council to revise its approach to ensure compliance with the Act.

Australian Nursing and Midwifery Federation v Maribyrnong City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established