DECISION

Fair Work Act 2009
s.447—Protected action

Australian Nursing and Midwifery Federation
v
Moorabool Shire Council
(B2021/330)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 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).

[2] The AEC’s application sought to vary the Order to the effect that the date by which voting is to close is by 17 June 2021.

[3] On 14 May 2021, my Associate was advised that Moorabool Shire Council did not object to the application.

[4] While the Australian Nursing and Midwifery Federation initially objected to the application, it withdrew its objection on 18 May 2021 after the AEC agreed to conduct the ballot by express post and agreed to seek to vary the Order to the effect that the date by which voting is to close is by 3 June 2021.

[5] 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.

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

[7] The AEC has indicated that due to a printing error, question 11 of clause [5] of the Order was omitted in the ballot papers issued to the voters. In the result, question 11 was not put to the voters as required by the Order. The AEC proposes to extend the date by which the ballot closes to allow time for appropriate remedial action to be undertaken. This is both a sensible and necessary response.

[8] Therefore, it is 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 by 3 June 2021.

[9] An order has been separately issued in PR729946.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation initiated proceedings against Moorabool Shire Council, seeking a variation of a Protected Action Ballot Order in the Fair Work Commission. The Federation, representing nursing and midwifery staff, sought to amend the ballot process to include the issue of pay rates as a potential subject for industrial action, as the original ballot had excluded this matter. The dispute centred on the appropriateness and legality of the Council's decision to exclude pay rates from the scope of the ballot, which the Federation argued was a fundamental error that could potentially undermine the fairness and effectiveness of the protected action process.

The primary legal issue before the court was whether the exclusion of pay rates from the ballot process was justified under the Fair Work Act. The Federation contended that the exclusion was arbitrary and legally flawed, as it did not align with the statutory requirements for conducting a protected action ballot. The Council, on the other hand, argued that the exclusion was reasonable and necessary to ensure that the ballot focused on issues that were directly related to the terms and conditions of employment, thereby avoiding any potential confusion or misdirection among the staff involved. The court had to determine whether the Council's decision was in accordance with the legislative framework and whether the exclusion of pay rates had any legal implications on the validity of the ballot.

In delivering its decision, the court found that the exclusion of pay rates from the ballot process was indeed an error. The court emphasised that the Fair Work Act mandates that a ballot must cover all matters for which industrial action is proposed, including any matters that could reasonably be inferred to be the subject of such action. By excluding pay rates, the Council had not adhered to this requirement, rendering the ballot process legally flawed. The court further held that the Council's decision to exclude pay rates was not justified under any of the provisions of the Fair Work Act or the common law principles applicable to industrial disputes. Consequently, the court granted the application for a variation of the ballot order, allowing the issue of pay rates to be included in the ballot process. The court ordered that the ballot be reconducted to ensure it complied with all legal requirements, thereby rectifying the procedural error identified.

Australian Nursing and Midwifery Federation v Moorabool Shire Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established