Australian Nursing and Midwifery Federation v Southern Cross Care (Tas) Inc. T/A Southern Cross Care Summary

[2022] FWC 513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation

Southern Cross Care (Tas) Inc. T/A Southern Cross Care

(B2022/182)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 MARCH 2022

Proposed protected action ballot of employees of Southern Cross Care (Tas) Inc.

This is an application by the Australian Nursing and Midwifery Federation (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Southern Cross Care (Tas) Inc. T/A Southern Cross Care (the Respondent).

On 8 March 2022, my Associate was advised that the Respondent did not object to 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 declaration of Ms Emily Shepherd of the Applicant 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.

The Applicant sought that a person other than the Australian Electoral Commission 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 Vero Voting. I am satisfied that Vero Voting is a fit and proper person to conduct the ballot. I am also satisfied that Vero Voting is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Vero Voting has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint Vero Voting as the protected action ballot agent.

An order has been separately issued in PR739120.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (Applicant) made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Southern Cross Care (Tas) Inc. T/A Southern Cross Care (the Respondent). The application was made following the completion of a notification time in relation to a proposed agreement and the Applicant’s attempts to reach an agreement with the Respondent. On 8 March 2022, the Respondent did not object to the application, leading to the matter being determined on the papers without a hearing.

The legal issues before the court involved determining whether the requirements of s.443(1) of the Act had been met and whether Vero Voting was a fit and proper person to act as the ballot agent for the protected action ballot. The Applicant’s declaration, which detailed the steps taken in bargaining with the Respondent and the Applicant’s genuine efforts to reach agreement, supported the satisfaction of the notification time requirement. Additionally, Vero Voting was proposed as the ballot agent, a decision that was not opposed by the Respondent.

The court found that the requirements of s.443(1) of the Act had been met, and Vero Voting was deemed a suitable choice for the ballot agent. Vero Voting’s capability to ensure the secrecy and security of the votes, along with its agreement to comply with the Privacy Act 1998, were factors that led to its appointment as the protected action ballot agent. Consequently, Vero Voting was appointed as the ballot agent for the protected action ballot.

The court issued an order appointing Vero Voting as the ballot agent, separate from the main decision. The order is recorded in PR739120.

Australian Nursing and Midwifery Federation v Southern Cross Care (Tas) Inc. T/A Southern Cross Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established