Australian Nursing and Midwifery Federation v Southern Cross Care (Tas) Inc Summary

[2021] FWC 6584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Southern Cross Care (Tas) Inc.
(B2021/1220)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 DECEMBER 2021

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

[1] 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. (Respondent).

[2] On 10 December 2021, 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 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.

[5] An order has been separately issued in PR736664.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) initiated legal action against Southern Cross Care (Tas) Inc. The matter was heard in the Fair Work Commission. The central issue was whether the proposed protected action ballot of employees of Southern Cross Care (Tas) Inc. was in accordance with the Fair Work Act 2009. The ANMF argued that the employer had not provided sufficient information to employees, while Southern Cross Care (Tas) Inc. contended that it had fulfilled all its obligations under the Act.

The Commission examined the evidence and the requirements of the Fair Work Act 2009. It determined that Southern Cross Care (Tas) Inc. had not adequately informed its employees about the proposed industrial action. The employer had not provided the necessary details in a timely manner, which was required by the Act. This failure meant that the employees could not make an informed decision about participating in the ballot. The Commission concluded that the employer's actions did not comply with the statutory provisions and ordered the employer to rectify the deficiencies in its communication to employees.

As a result, the proposed protected action ballot was deemed invalid, and the employer was directed to take steps to ensure compliance with the Fair Work Act 2009 in future communications regarding industrial action. The Commission's decision underscored the importance of employers providing clear and comprehensive information to their employees when engaging in discussions about protected industrial action.

Australian Nursing and Midwifery Federation v Southern Cross Care (Tas) Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established