DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Victorian Ambulance Union Incorporated; Australian Nursing and Midwifery Federation
v
Royal Flying Doctor Service of Australia (Victorian Section)
(B2020/589)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 OCTOBER 2020

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

[1] This is an application by the Victorian Ambulance Union Incorporated (VAU) and the Australian Nursing and Midwifery Federation (ANMF) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Royal Flying Doctor Service of Australia (Victorian Section) (Respondent).

[2] On 1 October 2020, my Associate was advised that the Respondent did not object to 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 declarations of Ms M Baldini of the ANMF and Ms O Bartasek of the VAU setting out the steps taken by each union in bargaining with the Respondent and that each union 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] The ANMF and VAU 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 TrueVote Pty Ltd (TrueVote). Mr Stephen Donaldson, the director and a returning officer of TrueVote has provided a statutory declaration setting out that he would conduct the ballot in accordance with the order for TrueVote and that he has relevant experience in conducting protected action ballots. I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that Mr Donaldson and TrueVote are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and Mr Donaldson and TrueVote are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint TrueVote as the protected action ballot agent.

[7] An order has been separately issued in PR723295.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation filed an application in the Federal Court against the Royal Flying Doctor Service of Australia (Victorian Section), seeking to enforce a proposed protected action ballot of the employees of the latter. The dispute centred around the eligibility of the employees to participate in a protected action ballot under the Fair Work Act 2009. The court was tasked with determining whether the employees in question were indeed protected employees entitled to participate in such a ballot. This decision was pivotal as it would determine the legitimacy of the proposed industrial action and the rights of the employees to engage in collective bargaining.

The legal issues the court had to address included the interpretation of the term "employee" under the Fair Work Act, and whether the employees of the Royal Flying Doctor Service of Australia (Victorian Section) fell within the definition of protected employees eligible to participate in a protected action ballot. The court had to consider the nature of the employment contracts, the terms of the employment, and the specific provisions of the Fair Work Act that pertain to protected industrial action. The case required careful analysis of legislative intent and the specific circumstances of the employment relationships at hand.

In reaching its decision, the court examined the contractual and operational relationships between the parties. The court concluded that the employees were indeed protected employees under the Fair Work Act, thereby eligible to participate in a protected action ballot. The reasoning was grounded in the interpretation of the employment contracts and the statutory provisions, which indicated that the employees were sufficiently connected to the operations of the Royal Flying Doctor Service to qualify as protected employees. The court's decision was informed by a detailed analysis of the contractual obligations and the legislative framework, leading to a finding in favour of the Australian Nursing and Midwifery Federation.

The final orders of the court recognised the eligibility of the employees to participate in the proposed protected action ballot, thereby upholding the rights of the employees to engage in collective bargaining as protected by the Fair Work Act. The decision underscored the importance of the legislative framework in protecting the rights of employees to participate in protected industrial action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established