Australian Nursing and Midwifery Federation v St Vincent's Private Hospital, Sydney

[2023] FWC 1790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Australian Nursing and Midwifery Federation
v

St Vincent’s Private Hospital, Sydney

(B2023/730)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 JULY 2023

Application to extend the 30 day period in relation to B2023/465

This matter concerns the declaration of the result of a protected action ballot (PR762563) held in matter B2023/465 and declared on 23 June 2023.

The Australian Nursing and Midwifery Federation (ANMF) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the ANMF contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

St Vincent’s Private Hospital, Sydney has advised the Commission it does not object to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible ANMF members employed by St Vincent’s Private Hospital, Sydney be extended by a further 30 days.

This order will operate on and from 21 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Australian Nursing and Midwifery Federation (ANMF) to extend the 30-day period for taking industrial action as authorised by a protected action ballot. St Vincent's Private Hospital, Sydney did not object to the application. The dispute centred on whether the Commission should grant the extension of the 30-day period for commencing protected industrial action, in accordance with section 459(3) of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the requirements of section 459(3) of the Fair Work Act were satisfied. Section 459(3) allows for the extension of the 30-day period if the applicant for the protected action ballot order applies to the Commission for the extension, and the period has not previously been extended. The ANMF submitted that the conditions for extension were met, and the period should be extended by a further 30 days. St Vincent's Private Hospital, Sydney did not oppose the application.

The Commission found that the application met the requirements of section 459(3) of the Act. Given that the hospital did not object to the application, the Deputy President concluded that the extension should be granted. The Deputy President noted that the Act allows for such an extension if the specific conditions are met, and in this instance, the requirements were satisfied.

In light of the above, the Commission ordered that the 30-day period for the commencement of protected industrial action by eligible ANMF members employed by St Vincent’s Private Hospital, Sydney be extended by a further 30 days, starting from 21 July 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established