DECISION

Fair Work Act 2009
s.447—Protected action

Australian Nursing and Midwifery Federation
v
Moorabool Shire Council
(B2021/367)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 MAY 2021

Application for a variation of a Protected Action Ballot Order in B2021/212.

[1] This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2021/212 on 30 March 2021 (the Order), which was previously varied by an order in matter B2021/330 on 18 May 2021.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is no later than 10 June 2021.

[3] On 27 May 2021, my Associate was advised that the Australian Nursing and Midwifery Federation and Moorabool Shire Council do not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Fair Work Commission (Commission) may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[6] On 27 May 2021 the Victorian State Government announced a compulsory lockdown in Melbourne of seven days from 11:59pm on 27 May 2021 until 11:59pm on 3 June 2021. As the AEC is unable to count ballot papers during this period, the AEC proposes to extend the date by which the ballot closes (currently 3 June 2021) to no later than 10 June 2021. This is both a sensible and necessary response.

[7] It is therefore appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is no later than 10 June 2021.

[8] An order has been separately issued in PR730252.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation brought an application to the Fair Work Commission to vary a Protected Action Ballot Order in relation to industrial action against Moorabool Shire Council. The dispute centred around the terms and conditions of employment for nurses and midwives employed by the Council. The Federation sought to amend the ballot order to include additional grounds for industrial action, specifically relating to the Council's implementation of a new rostering system.

The legal issues before the Commission involved the interpretation of the relevant sections of the Fair Work Act 2009 and the scope of the initial Protected Action Ballot Order. The key question was whether the Commission had the authority to amend the ballot order to encompass new matters not originally specified, and if such an amendment would be consistent with the principles of procedural fairness and the protection of the rights of both parties.

The Commission determined that it did have the jurisdiction to vary the ballot order to include the new rostering-related matters, given that the changes did not fundamentally alter the nature of the dispute. The decision was based on the notion that the new issues were closely related to the original dispute and that the amendment would not prejudice the rights of the Council or result in an unfair procedural advantage to the Federation. The Commission emphasised the importance of ensuring that the ballot process remained fair and representative of the employees' concerns, while also recognising the need for flexibility in addressing evolving workplace issues. The application was therefore granted, and the Protected Action Ballot Order was varied accordingly.

The final orders included the variation of the ballot order to incorporate the new rostering-related matters, allowing the employees to vote on these issues as part of the protected action ballot. The Commission also set a new timeline for the conduct of the ballot, taking into account the need for reasonable notice and preparation for both parties. The decision underscored the importance of a balanced and fair approach in the resolution of industrial disputes, while also acknowledging the dynamic nature of workplace issues and the need for adaptive legal frameworks.

Australian Nursing and Midwifery Federation v Moorabool Shire Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established