Australian Nursing and Midwifery Federation v Moreland City Council Summary

[2022] FWC 747

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Moreland City Council

(B2022/260)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 APRIL 2022

Proposed protected action ballot of employees of Moreland City Council.

This is an application by the Australian Nursing and Midwifery Federation (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 (the Respondent).

On 4 April 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Ms Michelle Baldini 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.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR740008.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (Applicant) applied to the Fair Work Commission for an order under section 437 of the Fair Work Act 2009, requesting permission to hold a protected action ballot of certain employees of Moreland City Council (the Respondent). The application was not opposed by the Respondent, and the Deputy President determined the matter on the papers. The Applicant sought an order to appoint a person other than the Australian Electoral Commission as the ballot agent, specifically Democratic Outcomes Pty Ltd trading as CiVS (CiVS). This request was also not opposed by the Respondent.

The Deputy President considered the material before the Court, including the declaration of Ms Michelle Baldini of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it had been, and was, genuinely trying to reach agreement with the Respondent. The Deputy President was satisfied that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met. The Deputy President was also satisfied that CiVS was a fit and proper person to conduct the ballot, and that Mr Michael and CiVS were capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS had agreed to be the protected action ballot agent and Mr Michael and CiVS were bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

The Deputy President therefore appointed CiVS as the protected action ballot agent. An order was separately issued in PR740008. The Deputy President concluded that the Applicant had met the requirements for a protected action ballot under the Fair Work Act 2009, and that CiVS was a suitable ballot agent for the proposed ballot. The Deputy President's decision was based on the material before the Court, including the declarations of Ms Michelle Baldini and Mr Michael M Michael, and the lack of opposition from the Respondent. The Deputy President's decision is a significant step towards facilitating the proposed protected action ballot, which is a crucial tool for employees to assert their rights and negotiate better working conditions with their employer.

Australian Nursing and Midwifery Federation v Moreland City Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established