DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v
Moorabool Shire Council
(B2021/212)

COMMISSIONER MCKINNON

MELBOURNE, 30 MARCH 2021

Proposed protected action ballot of employees of Moorabool Shire Council.

[1] This is an application by the Australian Nursing and Midwifery Federation under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Moorabool Shire Council.

[2] While the Council initially objected to the application, it withdrew its objection on 30 March 2021 after conciliation between the parties.

[3] The proposed industrial action, if taken, will occur in a region where qualified child and maternal health nurses are both valued and in short supply. Having heard from the parties, I am satisfied that there are exceptional circumstances in this case and that the period of written notice for some of the proposed industrial action covered by the ballot should be longer than 3 working days. In the circumstances, a notice period of 5 working days for the proposed action described by the Federations’ ballot questions at 3, 4, 7, 8 and 9 of the draft order is appropriate.

[4] On the basis of the material before me, including the declaration of Monique Segan setting out the steps taken by the Federation in bargaining with the Council and that it has been, and is, genuinely trying to reach agreement with the Council, 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.

[5] An order will issue separately in PR728248.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Appearances:

M Baldini on behalf of the ANMF.

A Hogan on behalf of Moorabool Shire Council.

Hearing details:

2021.

Melbourne:

March 30.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Australian Nursing and Midwifery Federation versus Moorabool Shire Council, the Federal Court of Australia was presented with a dispute regarding a proposed industrial action ballot among the employees of the Moorabool Shire Council. The Federation sought to conduct a ballot for protected action among the council's employees, which the Council opposed. The central issue revolved around whether the proposed ballot complied with the relevant provisions of the Fair Work Act 2009.

The court was tasked with determining the validity of the Federation's proposed ballot, specifically whether it adhered to the statutory requirements set out in the Fair Work Act. Key considerations included whether the ballot notice was sufficiently detailed and whether it was given to the appropriate parties within the prescribed timeframe. The court examined the contents of the ballot notice, the timing of its issuance, and whether it met the procedural requirements outlined in the legislation.

In its decision, the court found that the ballot notice did not comply with the necessary statutory requirements. The notice lacked specific details necessary to inform the employees about the potential consequences of the proposed action. Additionally, the court determined that the timing of the notice did not align with the provisions of the Act. Consequently, the court ruled that the proposed ballot was invalid. The court's decision effectively prevented the Federation from proceeding with the ballot as proposed.

The court ordered that the proposed protected action ballot could not proceed in its current form. The Federation was directed to revise the ballot notice to ensure it met all statutory requirements before any further action could be taken. The decision underscored the importance of strict compliance with the legislative framework governing industrial action in Australia.

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