Australian Nursing and Midwifery Federation v Royal Flying Doctor Service of Australia (Queensland Section) Limited

[2023] FWC 3287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Australian Nursing and Midwifery Federation
v

Royal Flying Doctor Service of Australia (Queensland Section) Limited

(B2023/1348)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 DECEMBER 2023

Application to extend the 30 day period in relation to B2023/1153

This matter concerns the declaration of the result of a protected action ballot (PR767571) held in matter B2023/1153. The ballot results were declared on 7 November 2023 and a correction to the results was issued on 15 November 2023.

The Australian Nursing and Midwifery Federation (ANMF or Applicant) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the ANMF contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Royal Flying Doctor Service of Australia (Queensland Section) Limited (RFDS) has not advised the Commission of any objection to this application

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible ANMF members employed by RFDS be extended by a further 30 days.

This order will operate on and from 8 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) applied to the Fair Work Commission for an extension to the 30-day period within which industrial action could be undertaken following a protected action ballot. The matter involved the Royal Flying Doctor Service of Australia (Queensland Section) Limited (RFDS) and related to the authorisation of protected action as per section 459 of the Fair Work Act 2009. The original ballot results were declared on 7 November 2023, with a correction issued on 15 November 2023. The ANMF sought to extend this 30-day period by an additional 30 days, arguing that the statutory criteria for such an extension had been met and that no previous extensions had been granted.

The legal issue before the Deputy President was whether the application met the statutory requirements for an extension under section 459(3) of the Fair Work Act 2009. The relevant section allows for an extension of the 30-day period if the applicant for the protected action ballot order applies for the extension and if the period has not previously been extended. The Deputy President considered the application and noted that RFDS did not object to the extension. The Deputy President concluded that the application satisfied the statutory criteria and that the extension should be granted.

In granting the application, the Deputy President found that the ANMF had complied with the necessary requirements, and there was no prior extension of the 30-day period. Consequently, the Deputy President ordered that the 30-day period for the commencement of protected industrial action for eligible ANMF members employed by RFDS be extended by an additional 30 days, effective from 8 December 2023. The decision ensures that the ANMF has additional time to pursue its industrial action in accordance with the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established