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

[2023] FWC 2786

[2023] FWC 2786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Royal Flying Doctor Service of Australia (Queensland Section) Limited

(B2023/1153)

COMMISSIONER HUNT BRISBANE, 24 OCTOBER 2023

Proposed protected action ballot of employees of Royal Flying Doctor Service of Australia (Queensland Section) Limited.

1. The Australian Nursing and Midwifery Federation (ANMF) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Royal Flying Doctor Service of Australia (Queensland Section) Limited (the Respondent).

1. The Respondent notified an objection to the application in respect to the notification time of all of the proposed industrial action to be balloted and raised a number of concerns in respect to the proposed industrial action to be balloted. I notified the parties that the concerns in respect to the nature of the proposed industrial action is not relevant for my consideration as to whether a protected action ballot order should be made. I caused my chambers to advise that if the Respondent opposes the application, particularly in relation to the notification time, an in-person hearing would be arranged for 25 October 2023.

1. On 24 October 2023, the Respondent wrote to my chambers advising that the parties have reached agreement in respect to the objection, as discussed below. The ANMF wrote to my Chambers shortly after, confirming it agrees to increasing the notice period to five working days. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the statutory declaration of Ms Trevascus, setting out the steps taken by the ANMF in bargaining with the Respondent and confirming that the ANMF has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.

1. I am satisfied that the ANMF has given notice in accordance with section 440 of the Act.

1. The parties reached a consent position during private discussions regarding the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days for all the questions within the order. The parties considered it appropriate, having regard to the nature of the industry that the Respondent operates in, for the Respondent to be provided with five working days’ notice for questions 1 to 8, inclusive.

1. Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.

1. In my view, specifying a longer period of notice of five working days for all the questions within the Order is justified by the particular exceptional circumstances in this case as detailed in the Respondent’s response, particularly ensuring that appropriate contingency arrangements are put in place for the provision of emergency medical services.

1. The protected action ballot order will specify a required period of notice of at least five working days for questions 1, 2, 3, 4, 5, 6, 7 and 8.

1. The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.[1]

1. The scheme of the Act is now that where named in the PABO application and proposed orders, the Commission will, subject to the Act, be obliged to, in effect, appoint that eligible protected action ballot agent to conduct the ballot concerns.

1. The Order [PR767571] will be issued concurrently with this Decision.

1. This matter will be listed for a s.448A conference. An Order and Direction will be issued shortly requiring attendance at the conference.

COMMISSIONER

[1] TrueVote Pty Ltd [2023] FWC 1446.

Printed by authority of the Commonwealth Government Printer

<PR767572>