Australian Nursing and Midwifery Federation v Melbourne IVF Pty Ltd T/A Melbourne IVF

[2024] FWC 662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Melbourne IVF Pty Ltd T/A Melbourne IVF

(B2024/213)

COMMISSIONER CONNOLLY

MELBOURNE, 13 MARCH 2024

Proposed protected action ballot of employees of Melbourne IVF Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation (ANMF or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Melbourne IVF Pty Ltd T/A Melbourne IVF (Melbourne IVF).

The application was lodged on 12 March 2024 and allocated to my chambers for determination on 13 March 2024.

On 12 March 2024, the Commission was advised that the Employer, in effect, did not object to the Application, on the basis that an extension of the notice period to 7 days be provided due to exceptional circumstances.

On 13 March 2024, my Chambers sought advice from the parties on whether they wished to be heard further in relation to this application. The Respondent’s representative advised that the Respondent does not oppose the Application anymore and considers it appropriate to determine the matter on the papers. The Applicant consented to this proposal.

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 Rima Niroumand behalf of the ANMF, setting out the steps taken by the ANMF in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with them, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement & Voting Systems Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has recently been approved as an eligible protected ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot. The ballot period is proposed to commence from the date the PABO has been issued by the Commission.

An Order has been separately issued in PR772322.

This matter will shortly be listed for a s.448A conference. An order requiring the bargaining representatives’ attendance at the conference will thereafter be issued. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] [1] Vero Engagement & Voting Solutions T/A Vero Voting [2023] FWC 1531.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Melbourne IVF Pty Ltd T/A Melbourne IVF. The application was lodged on 12 March 2024 and was assigned to Commissioner Connolly for determination on 13 March 2024. Melbourne IVF did not object to the application but requested an extension to the notice period due to exceptional circumstances. The ANMF did not oppose the request for an extension and agreed to determine the matter based on the documents submitted.

The legal issues before the court involved determining whether the requirements of section 443(1) of the Fair Work Act had been met and if the conditions for a protected action ballot order were satisfied. The court had to consider the declaration of Ms. Rima Niroumand on behalf of the ANMF, which detailed the union's efforts to reach an agreement with Melbourne IVF. Additionally, the court had to ensure that the ballot would be conducted by an authorised agent, Vero Engagement & Voting Systems Solutions Pty Ltd T/A Vero Voting, which had recently been approved under section 468A of the Act.

Commissioner Connolly was satisfied that all requirements of section 443(1) had been met based on the submitted documents. The union had genuinely attempted to reach an agreement with Melbourne IVF, and the proposed ballot period and agent were acceptable. Consequently, the court issued an order for the protected action ballot to be conducted by Vero Voting, with the ballot period commencing from the date the order was issued. The matter was scheduled for a section 448A conference, with an order to require the attendance of bargaining representatives, and directions to ensure meaningful negotiations took place.

The final orders included the granting of a protected action ballot order, the approval of the proposed ballot period and agent, and the scheduling of a section 448A conference to facilitate further negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established