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

[2022] FWC 3189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

St Vincent’s Private Hospital Sydney

(B2022/1778)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 DECEMBER 2022

Proposed protected action ballot of employees of St Vincent’s Private Hospital Sydney

This is an application by the Australian Nursing and Midwifery Federation (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 St Vincent’s Private Hospital Sydney (Respondent).

On 1 December 2022, 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 Nicholas Bernard Coady of the Applicant declared on 29 November 2022, 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 PR748534.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (Applicant) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of St Vincent's Private Hospital Sydney (Respondent). The Applicant sought to conduct a ballot for protected industrial action, as permitted under section 437 of the Fair Work Act 2009. The Respondent did not oppose the application, and the matter was determined on the papers without a hearing.

The central legal issue before the Fair Work Commission was whether the statutory requirements for conducting a protected action ballot were met. Specifically, the Commission had to assess if the notification period under section 443(1) of the Act was satisfied, and if the Applicant had genuinely attempted to reach an agreement with the Respondent. The Commission's decision hinged on the evidence provided, including the statutory declaration by Nicholas Bernard Coady of the Applicant, which detailed the bargaining efforts and negotiations with the Respondent.

After reviewing the material before it, the Commission found that the Applicant had indeed fulfilled the necessary statutory requirements. The declaration provided by the Applicant demonstrated ongoing and genuine attempts at reaching an agreement with the Respondent. Consequently, the Fair Work Commission was satisfied that a notification period was in place and that the statutory criteria were met.

An order has been issued allowing the Applicant to proceed with the protected action ballot. This decision underscores the importance of meeting statutory requirements for protected industrial action and the Fair Work Commission's role in ensuring that such actions are conducted within the legal framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established