Australian Nursing and Midwifery Federation v Melton City Council

[2023] FWC 193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Melton City Council

(B2023/40)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 JANUARY 2023

Proposed protected action ballot of employees of Melton 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 Melton City Council (Respondent).

On 23 January 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 Cassia Drever-Smith 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 PR749889.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Melton City Council (Respondent). The application sought to hold a ballot to authorise protected industrial action by the employees. The matter was heard by Deputy President Clancy in Melbourne on 23 January 2023. The Respondent did not object to the application, so the matter was determined on the papers without a hearing.

The legal issues before the court were whether the notification time in relation to the proposed agreement was valid and whether the requirements of section 443(1) of the Fair Work Act 2009 had been met. The Applicant needed to demonstrate that it had been, and was, genuinely trying to reach agreement with the Respondent and that the requirements for a ballot had been satisfied. The declaration of Ms Cassia Drever-Smith of the Applicant, which set out the steps taken by the Applicant in bargaining with the Respondent, was before the court.

The court was satisfied that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met. The declaration of Ms Cassia Drever-Smith demonstrated that the Applicant had been, and was, genuinely trying to reach agreement with the Respondent. The court was satisfied that the Applicant had taken all reasonable steps to reach agreement with the Respondent and that the requirements for a ballot had been satisfied. An order was issued in PR749889.

This case highlights the importance of taking all reasonable steps to reach agreement with the employer before seeking to hold a protected action ballot. The court will consider the evidence before it to determine whether the requirements for a ballot have been satisfied. In this case, the court was satisfied that the Applicant had taken all reasonable steps to reach agreement with the Respondent and that the requirements for a ballot had been met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established