Australian Nursing and Midwifery Federation v St Vincent's Private Hospitals Ltd

[2022] FWC 3190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

St Vincent’s Private Hospitals Ltd

(B2022/1784)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 DECEMBER 2022

Proposed protected action ballot of employees of St Vincent’s Private Hospitals Ltd

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 Hospitals Ltd (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 PR748537.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANM) applied to the Fair Work Commission (FWC) for an order to conduct a protected action ballot among certain employees of St Vincent's Private Hospitals Ltd (SVPH). The application was made under section 437 of the Fair Work Act 2009 (Cth). SVPH did not oppose the application, leading the Commission to determine the matter based on the documents submitted without holding a hearing. The ANM sought the ballot in an attempt to resolve a bargaining impasse with SVPH.

The central legal issue before the Commission was whether the ANM had genuinely attempted to negotiate in good faith with SVPH and if the statutory requirements for a protected action ballot were met. The ANM needed to demonstrate that it had been genuinely trying to reach an agreement with SVPH and that a notification period had elapsed, as required by section 443(1) of the Act.

The Vice President Catanzariti examined the statutory declaration provided by Nicholas Bernard Coady of the ANM, which outlined the bargaining efforts and the timeframes involved. The Vice President was satisfied that the ANM had genuinely tried to negotiate and that the statutory notification period had been met. Consequently, the Vice President issued an order permitting the protected action ballot to proceed. This decision underscores the importance of good faith bargaining and adherence to statutory requirements in workplace negotiations under the Fair Work Act.

The Commission issued an order allowing the ANM to proceed with the protected action ballot among the specified employees of SVPH. This order was made in light of the evidence provided and the absence of opposition from SVPH. The decision highlights the FWC's role in facilitating fair work practices and ensuring that statutory processes are followed in the resolution of workplace disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established