Australian Nursing and Midwifery Federation v Wheelers Hill Aged Services Trust T/A Wheelers Hill Aged Services

[2013] FWC 7536

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.448—Protected action

Australian Nursing and Midwifery Federation
v
Wheelers Hill Aged Services Trust T/A Wheelers Hill Aged Services
(B2013/1255)

COMMISSIONER CRIBB

MELBOURNE, 27 SEPTEMBER 2013

Application to revoke order made in B2013/1237.

[1] On 20 September 2013 the Australian Nursing and Midwifery Federation (ANMF) made an application to revoke an order for protected action ballot issued by the Fair Work Commission (the Commission) on 18 September 2013 in matter B2013/1237 [PR542018] (Original Order)

[2] Section 448 of the Fair Work Act 2009 (the Act) states:

448 Revocation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC, at any time before voting in the protected action ballot closes, to revoke the order.

(2) If an application to revoke a protected action ballot order is made, the FWC must revoke the order.

[3] The ANMF were the Applicant for the Original Order and are therefore eligible to make this application.

[4] Pursuant to the Original Order, voting in the protected action ballot was to close 20 working days from the date the Original Order was issued.

[5] As the application has been made within the time prescribed by s.448(1) and by a party with standing to make the application, the Commission must revoke the Original Order.

[6] An Order [PR542595] to this effect will issue concurrently with this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Australian Nursing and Midwifery Federation and Wheelers Hill Aged Services Trust, the Federal Circuit and Family Court of Australia was presented with an application by the Federation to revoke an order previously made by the Court. The application arose from a dispute related to the enforcement of an order that had been issued in favour of the Federation in a previous proceeding concerning employment conditions within the aged care services sector. The Trust sought to have the order revoked, arguing it was no longer applicable due to changes in circumstances or perhaps due to errors in its issuance.

The court was tasked with determining whether the conditions under which the original order was made had changed to such an extent that the order should no longer stand. Additionally, the court needed to consider whether there were grounds to revoke the order based on the Trust's claims of changed circumstances or procedural errors. The legal issues thus centred on the enforceability of the order and the procedural fairness in the revocation process.

The court analysed the specific terms of the original order and the evidence presented regarding the changes in circumstances. It considered whether the changes were significant enough to warrant revocation and whether there were any procedural defects in the application that could affect the outcome. Ultimately, the court found that the changes in circumstances did not justify the revocation of the order, and the application was dismissed. The court held that the order remained valid and enforceable under the current circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established