Australian Nursing and Midwifery Federation v The Bays Healthcare Group Inc Summary

[2025] FWC 433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

The Bays Healthcare Group Inc

(B2025/246)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 FEBRUARY 2025

Proposed protected action ballot of employees of The Bays Healthcare Group Inc

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 The Bays Healthcare Group Inc (Bays or Employer).

On 13 February 2025, the Commission was advised that the Employer, in effect, 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 Lisa Fitzpatrick, Secretary, 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 Bays, 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 and 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 28 February 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR784329.

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.

DEPUTY PRESIDENT

[1] This is, in effect, 11 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of The Bays Healthcare Group Inc. The application was made under section 437 of the Fair Work Act 2009, seeking to conduct a ballot for proposed protected industrial action. The Bays Healthcare Group Inc did not object to the application, leading the Deputy President Hampton to decide the matter on the papers without a hearing. The application was to determine whether the requirements of section 443 of the Act had been met for the proposed agreement, including the notification period and genuine efforts to reach an agreement.

The legal issues the court had to address included whether the notification time for the proposed agreement was valid and if all the requirements of section 443(1) of the Act had been fulfilled. The court needed to ensure that the ANMF had genuinely attempted to reach an agreement with The Bays Healthcare Group Inc. The declaration of Lisa Fitzpatrick, Secretary of the ANMF, was a key piece of evidence in establishing that the union had indeed made genuine efforts towards bargaining. Additionally, the court had to confirm that Vero Engagement and Voting Solutions Pty Ltd was an approved agent for conducting the ballot, as required under section 468A of the Act.

The Deputy President Hampton found that all the requirements of section 443(1) had been met, and the notification period was valid. Vero was duly authorised to conduct the ballot. The court set the closing date for voting as 28 February 2025, which also established the ballot period under section 448A(2) of the Act. The decision was made to hold a compulsory conciliation conference under section 448A, with another Member of the Commission assigned to conduct the conference and issue necessary orders and directions to facilitate meaningful negotiations.

The final orders of the court allowed the protected action ballot to proceed, with voting to close on 28 February 2025, and required the attendance of all bargaining representatives at the conciliation conference. This decision ensured that the process for protected action would be followed in accordance with the Fair Work Act 2009, aiming to resolve the dispute through further negotiations.

Australian Nursing and Midwifery Federation v The Bays Healthcare Group Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established