Australian Nursing and Midwifery Federation v Shellharbour Private Hospital Pty Ltd

[2023] FWC 475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Shellharbour Private Hospital Pty Ltd

(B2023/164)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Shellharbour Private Hospital Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation – New South Wales Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Shellharbour Private Hospital Pty Ltd (Respondent).

On 23 February 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Cameron Maxwell Stockley Smith of the Applicant declared on 22 February 2023, 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.

An Order has been separately issued in PR751192.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Australian Nursing and Midwifery Federation – New South Wales Branch against Shellharbour Private Hospital Pty Ltd. The Federation sought an order for a protected action ballot concerning specific employees of the hospital. The hospital did not oppose the application, leading the Commission to decide on the matter based on the provided documents, rather than holding a hearing. The primary document in question was a statutory declaration by Cameron Maxwell Stockley Smith of the Federation, affirming the Federation's efforts to reach an agreement with the hospital and satisfying the requirements under section 443(1) of the Fair Work Act 2009. Based on the evidence, the Commission determined that the notification period for the proposed agreement was adequate.

The central legal issue before the Commission was whether the conditions stipulated in section 437 of the Fair Work Act were fulfilled for the proposed protected action ballot. The Commission had to assess if the Federation had genuinely tried to reach an agreement with the hospital and if the statutory notification period had been appropriately observed. The determination hinged on the information provided in the statutory declaration and the absence of opposition from the hospital. The Commission's role was to ensure that the legal prerequisites for such a ballot were met, which included verifying the genuineness of the bargaining efforts and the compliance with the notification requirements.

Upon reviewing the statutory declaration and the absence of opposition from the hospital, the Commission concluded that the Federation had indeed been genuinely attempting to reach an agreement. The statutory declaration provided sufficient evidence of the bargaining process and the notification period. Consequently, the Commission found that the requirements of section 437 of the Act were satisfied. The Commission issued an order for the protected action ballot, allowing the Federation to proceed with the ballot under the provisions of the Fair Work Act.

In conclusion, the Fair Work Commission granted the application by the Australian Nursing and Midwifery Federation – New South Wales Branch for a protected action ballot concerning the employees of Shellharbour Private Hospital Pty Ltd. The decision was based on the statutory declaration provided by the Federation and the lack of opposition from the hospital. The Commission found that the Federation had genuinely tried to reach an agreement and that the notification period had been observed. Therefore, the Commission issued the required order for the ballot to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established