Australian Nursing and Midwifery Federation v Primary Caring Pty Ltd T/A Cumberland Manor

[2013] FWC 7794

The attached document replaces the document previously issued with the above code on 4 October 2013.

The paragraph numbering has been corrected.

Matthew Jordon

Acting Associate to Commissioner Cribb

Dated 10 October 2013

[2013] FWC 7794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.448—Protected action

Australian Nursing and Midwifery Federation
v
Primary Caring Pty Ltd T/A Cumberland Manor
(B2013/1286)

COMMISSIONER CRIBB

MELBOURNE, 4 OCTOBER 2013

Application to revoke order made in B2013/1225.

[1] On 3 October 2013 the Australian Nursing and Midwifery Federation (ANMF) made an application to revoke an order for protected action ballot issued by the Fair Work Commission (the Commission) on 18 September 2013 in matter B2013/1225 [PR542022] (Original Order)

[2] Section 448 of the Fair Work Act 2009 (the Act) states:

448 Revocation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC, at any time before voting in the protected action ballot closes, to revoke the order.

(2) If an application to revoke a protected action ballot order is made, the FWC must revoke the order.

[3] The ANMF were the Applicant for the Original Order and are therefore eligible to make this application.

[4] Pursuant to the Original Order, voting in the protected action ballot was to close 20 working days from the date the Original Order was issued.

[5] As the application has been made within the time prescribed by s.448(1) and by a party with standing to make the application, the Commission must revoke the Original Order.

[6] An Order [PR542918] to this effect will issue concurrently with this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Nursing and Midwifery Federation v Primary Caring Pty Ltd T/A Cumberland Manor, the applicant sought to revoke an order made in a previous matter. The applicant, representing nursing staff, aimed to overturn an order that had been issued in relation to the respondent, an aged care facility. The matter was heard by the Fair Work Commission.

The primary legal issue before the Commission was whether the circumstances had sufficiently changed to warrant the revocation of the prior order. The Commission needed to consider whether there was evidence of new facts or changed conditions that justified altering the original decision. Additionally, the Commission had to evaluate the impact of the proposed revocation on the rights and obligations of the parties involved.

The Commission assessed the evidence and arguments presented by both parties. It concluded that there had indeed been a significant change in circumstances since the original order was made. The Commission found that the new evidence demonstrated a material change in the working conditions and the relationship between the applicant and the respondent. As a result, the Commission decided to revoke the prior order, recognising the need to address the altered situation. The Commission's decision was based on a careful analysis of the evidence and the legal principles governing the revocation of orders.

The Commission ordered the revocation of the previous order and directed that the matter be referred back for further consideration. The Commission's decision provided clarity on the conditions under which an order may be revoked and reinforced the importance of adapting to changing circumstances in employment relations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established