DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Moreland City Council
(IA2018-4582)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 AUGUST 2018

Proposed protected action ballot of employees of Moreland City Council.

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

[2] On 22 August 2018, the Fair Work Commission was advised that the Respondent does not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Lisa Fitzpatrick 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.

[5] An order has been separately issued in PR620219.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (Victoria Branch) has applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Moreland City Council. This application was made under section 437 of the Fair Work Act 2009, seeking the right to hold a ballot to determine whether employees should take protected action, such as a strike or other industrial action, due to a breakdown in negotiations over an enterprise agreement.

The primary legal issue before the Commission was whether the application met the statutory requirements for a protected action ballot. This involved determining if the union had genuinely attempted to reach agreement with the employer and if the notification time for the proposed agreement had been adhered to. The Commission also had to ensure that the requirements under section 443(1) of the Act were satisfied.

The Vice President of the Fair Work Commission, Catanzariti, reviewed the material provided, including a statutory declaration from Lisa Fitzpatrick of the Applicant, which detailed the union's bargaining efforts and their attempts to reach an agreement with the Council. The Vice President found that the union had genuinely tried to reach an agreement and that the notification time for the proposed agreement had been met. Additionally, the requirements under section 443(1) of the Act were fulfilled. Consequently, the Vice President decided to grant the application without the need for a hearing. An order was issued in PR620219, allowing the union to proceed with the ballot.

The Fair Work Commission granted the application, permitting the union to hold a ballot for protected industrial action. The decision was based on the evidence provided by the union demonstrating their genuine efforts to reach an agreement with Moreland City Council and compliance with the statutory requirements for such a ballot.

Australian Nursing and Midwifery Federation v Moreland City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established