Australian Nursing and Midwifery Federation v South Eastern Private Hospital Pty Ltd and Brunswick Private Hospital Pty Ltd

[2025] FWC 830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

South Eastern Private Hospital Pty Ltd and Brunswick Private Hospital Pty Ltd

(B2025/502)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 MARCH 2025

Proposed protected action ballot of employees of South Eastern Private Hospital Pty Ltd and Brunswick Private Hospital Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation (ANMF or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of South Eastern Private Hospital Pty Ltd and Brunswick Private Hospital Pty Ltd (South Eastern Private and Brunswick Private or the Employers).

On 24 March 2025, the Commission was advised that the Employers, in effect, did not object to the Application provided that it was amended to correct the employing entities listed on the application. The ANMF has provided an amended draft order accordingly.

I observe that the Employers are related, and the parties are negotiating an enterprise agreement to replace the Aurora Healthcare Nurses Enterprise Agreement 2020.

In the circumstances, I have decided to grant leave to amend the application and I have determined the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Lisa Fitzpatrick, Secretary, setting out the steps taken by the ANMF in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with South Eastern Private and Brunswick Private, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

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

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 8 April 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR785502.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 working days from the making of the Order and was the date sought in the application.

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 order allowing a ballot for protected industrial action in relation to certain employees of South Eastern Private Hospital Pty Ltd and Brunswick Private Hospital Pty Ltd. The Hospitals did not object to the application, provided that it was amended to correct the names of the employers listed. The ANMF has provided an amended draft order accordingly. The Commission determined the matter on the papers without holding a hearing.

The legal issues the court had to decide included whether there was a notification time for the proposed agreement and whether all of the requirements in section 443(1) of the Fair Work Act 2009 were met. The court also needed to determine the date by which voting would close, which also established the ballot period for the purpose of section 448A(2) of the Act. The court was satisfied that there was a notification time in relation to the proposed agreement and that all of the requirements in section 443(1) of the Act had been met. The court determined that voting would close on 8 April 2025.

The court granted leave to amend the application and determined the matter on the papers without holding a hearing. The court observed that the Employers were related and that the parties were negotiating an enterprise agreement to replace the Aurora Healthcare Nurses Enterprise Agreement 2020. The court was satisfied that the ANMF had been, and was, genuinely trying to reach agreement with South Eastern Private and Brunswick Private. The court also determined that Vero Engagement and Voting Solutions Pty Ltd (Vero) was an approved ballot agent and that it would conduct the ballot. Vero has been approved as an eligible protected action ballot agent under section 468A of the Act and consequently is authorised to conduct the ballot. The court determined that the date by which voting was to close was 8 April 2025. This also established the ballot period for the purpose of section 448A(2) of the Act.

This matter will be assigned to another Member of the Commission to conduct the section 448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established