Australian Nursing and Midwifery Federation v Mayo Healthcare Group Pty Ltd

[2023] FWC 474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Mayo Healthcare Group Pty Ltd

(B2023/163)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Mayo Healthcare Group 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 Mayo Healthcare Group 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 PR751191.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Nursing and Midwifery Federation, New South Wales Branch, sought an order for a protected action ballot in relation to certain employees of Mayo Healthcare Group Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, with the Federation arguing that it had been genuinely attempting to reach an agreement with the employer but had been unable to do so, necessitating a ballot to determine the employees' course of action. The employer did not oppose the application, allowing the matter to be decided on the basis of the submitted documents.

The primary legal issue before the court was whether the application met the statutory requirements under the Fair Work Act 2009 to permit a protected action ballot. This involved confirming that the Federation had genuinely attempted to negotiate with the employer, that the requisite notification period had passed, and that the other procedural prerequisites under section 443(1) of the Act had been fulfilled. The court's task was to review the evidence, particularly the statutory declaration provided by the Federation, to determine if the conditions for a ballot were satisfied.

The Vice President of the Fair Work Commission, Catanzariti, examined the materials presented, including the statutory declaration from Cameron Maxwell Stockley Smith, which outlined the bargaining efforts and the genuine attempts at reaching an agreement. Based on this evidence, the Vice President was satisfied that the Federation had genuinely engaged in negotiations and that all procedural requirements had been met. Consequently, the court issued an order permitting the protected action ballot as requested by the Federation.

The court's decision was to grant the order for a protected action ballot, recognising the Federation's efforts in bargaining and the failure to reach an agreement with the employer. The order was issued in accordance with the statutory provisions and was intended to facilitate the employees' right to determine their industrial action through a ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established