Australian Nursing and Midwifery Federation v Mildura Health Private Hospital T/A Mildura Private Hospital

[2024] FWC 2051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Mildura Health Private Hospital T/A Mildura Private Hospital

(B2024/976)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 AUGUST 2024

Proposed protected action ballot of employees of Mildura Health Private Hospital

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 Mildura Health Private Hospital T/A Mildura Private Hospital (Mildura Private Hospital or Employer).

On 1 August 2024, the Commission was advised that the Employer, in effect, 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 Lisa Fitzpatrick, Secretary, ANMF (Victorian Branch), 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 the Mildura Private Hospital, 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 Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 16 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking the forms of industrial action set out in questions 20 to 24 of clause 5 of the Order made by the Commission. The agreed extended notice for the relevant industrial action is 5 calendar days. Noting that the minimum default period is always 3 working days, an additional qualification has been added to the proposed clause. I observe that the default period of 3 working days will apply to the remaining forms of action arising from the ballot questions.

An Order has been separately issued in PR777770.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) lodged an application under section 437 of the Fair Work Act 2009 with the Fair Work Commission, seeking a protected action ballot order for employees of Mildura Health Private Hospital T/A Mildura Private Hospital. The application was made in the context of ongoing negotiations for an enterprise agreement. Mildura Health Private Hospital did not object to the application, leading to the matter being decided based on the submissions and evidence provided. The primary issue before the Deputy President was whether the requirements for conducting a protected action ballot under the Act were met, including whether the notification period was sufficient and whether exceptional circumstances warranted an extension of the notice period.

The Deputy President considered the declaration of Lisa Fitzpatrick, the Secretary of ANMF (Victorian Branch), which detailed the steps taken in bargaining with the employer and the genuine efforts to reach an agreement. The Deputy President found that the notification time for the proposed agreement had been met and that all requirements of section 443(1) of the Act were satisfied. The ballot was to be conducted by Vero Engagement & Voting Solutions Pty Ltd, an approved ballot agent. The Deputy President also determined that there were exceptional circumstances justifying an extended period of written notice for specific forms of industrial action, extending the notice period to 5 calendar days. The remaining forms of action would adhere to the default period of 3 working days.

Based on the evidence and submissions, the Deputy President issued an order permitting the ballot to proceed. The order specified the closing date for voting and noted that the matter would be referred to another member of the Commission for a compulsory conciliation conference. Directions would be issued to ensure the parties were prepared for meaningful negotiations. The decision highlights the importance of meeting legislative requirements and the Commission's role in facilitating fair and effective industrial action processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established