Australian Nursing and Midwifery Federation v St Vincents Private Hospitals Ltd T/A St Vincents Private

[2024] FWC 3012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

St Vincents Private Hospitals Ltd T/A St Vincents Private

(B2024/1405)

COMMISSIONER TRAN

MELBOURNE, 30 OCTOBER 2024

Proposed protected action ballot of employees of St Vincents Private Hospitals Ltd Trading As St Vincents Private

This is an application by the Australian Nursing and Midwifery Federation (ANMF or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of St Vincents Private Hospitals Ltd T/A St Vincents Private (St Vincents Private or Employer).

Following a conference that I conducted on 30 October 2024, the Employer advised that it 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 Madeleine Harradence, Assistant Secretary, ANMF Victorian Branch, setting out the steps taken by the ANMF in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with it, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 11 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780777.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] This is, in effect, eight working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) filed an application under section 437 of the Fair Work Act 2009, requesting a protected action ballot order for certain employees of St Vincents Private Hospitals Ltd, trading as St Vincents Private. This application was brought before the Fair Work Commission, with Commissioner Tran presiding over the case in Melbourne on 30 October 2024. The employer, St Vincents Private Hospitals Ltd, indicated it had no objections to the application during a conference conducted by the Commissioner, leading to the decision to proceed with the matter on the basis of submitted documents without a formal hearing.

The primary legal issues before the court were whether the ANMF had genuinely attempted to reach an agreement with the employer and if all the requirements under section 443(1) of the Fair Work Act had been met to permit a protected action ballot. The ANMF's declaration, provided by Madeleine Harradence, Assistant Secretary of the ANMF Victorian Branch, detailed the bargaining steps taken and affirmed the union's genuine efforts to reach an agreement with the employer. The court had to ascertain whether these efforts complied with the legislative requirements and whether the notification period for the proposed agreement was appropriately set.

The Commissioner determined that the requirements of section 443(1) of the Act were fulfilled, and the proposed notification period for the agreement was valid. Consequently, the Commissioner authorised Vero Engagement & Voting Solutions Pty Ltd, an approved ballot agent, to conduct the ballot. The Commissioner set the closing date for voting as 11 November 2024, effectively establishing the ballot period for the purpose of section 448A(2) of the Act. This decision also triggered the need for a compulsory conciliation conference under section 448A, which will be overseen by another member of the Commission to facilitate meaningful negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established