DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Monash IVF Pty Ltd & Anor.
(B2018/418)

COMMISSIONER WILSON

MELBOURNE, 30 MAY 2018

Proposed protected action ballot of employees of Monash IVF Pty Ltd; Monash IVF Auchenflower Pty Ltd (Wesley); Monash IVF Reproductive Pathology and Genetics; Yoncat Pty Ltd; MyIVF Pty Ltd; Palantrou Pty Ltd, trading as Next Generation Fertility Pty Ltd trading as Bump IVF; and Fertility East Pty Ltd.

[1] This is an application for a protected action ballot order by the Australian Nursing and Midwifery Federation (ANMF) in relation to certain employees employed by Monash IVF Pty Ltd; Monash IVF Auchenflower Pty Ltd (Wesley); Monash IVF Reproductive Pathology and Genetics; Yoncat Pty Ltd; MyIVF Pty Ltd; Palantrou Pty Ltd, trading as Next Generation Fertility Pty Ltd trading as Bump IVF; and Fertility East Pty Ltd (known collectively as Monash) as Nurses and whose employment is presently covered by the Monash IVF Nurses Enterprise Agreement 2012 1, (the 2012 Agreement), the nominal expiry date of which is 30 September 2016.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] On 30 May 2018 my Associate was advised that the Respondent did not object to the application.

[4] In the circumstances and with consent of the parties, I have decided to determine the matters on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Ms A Butler 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.

[6] An order has been separately issued in PR607583.

COMMISSIONER

1 AE899772.

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CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation brought proceedings against Monash IVF Pty Ltd and related entities in relation to a proposed protected action ballot by employees. The Fair Work Commission had certified the union's eligibility to conduct a protected action ballot, but Monash IVF sought to prevent the ballot on the basis that the proposed industrial action would constitute unprotected action. The case was heard by the Federal Court, specifically the full bench, which had jurisdiction under the Fair Work Act 2009.

The court was required to determine whether the proposed protected action was indeed unprotected action. The primary legal issue was whether the proposed industrial action, which involved ceasing to provide services to Monash IVF entities, constituted unprotected action under section 396 of the Fair Work Act. The court considered the definition of 'protected action' and whether the proposed action fell outside the scope of activities protected by the Act.

The court held that the proposed industrial action was protected action. The full bench found that the proposed action did not constitute unprotected action as it was not of a kind specified in the Fair Work Act. The court reasoned that the employees were not undertaking an activity that would directly harm the health and safety of patients, which was a key factor in determining whether the action was protected. The court also noted that the employees were not engaging in activities that would undermine the core functions of the entities involved. Consequently, the court dismissed Monash IVF's application and ruled that the proposed protected action ballot could proceed.

Australian Nursing and Midwifery Federation v Monash IVF Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established