Australian Nursing and Midwifery Federation v Wollongong Day Surgery Pty Ltd

[2023] FWC 476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Nursing and Midwifery Federation
v

Wollongong Day Surgery Pty Ltd

(B2023/165)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2023

Proposed protected action ballot of employees of Wollongong Day Surgery Pty Ltd

This is an application by the Australian Nursing and Midwifery Federation – New South Wales Branch (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 Wollongong Day Surgery Pty Ltd (Respondent).

On 23 February 2023, 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 Cameron Maxwell Stockley Smith of the Applicant declared on 22 February 2023, 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 PR751197.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Australian Nursing and Midwifery Federation, New South Wales Branch, for a protected action ballot order concerning certain employees of Wollongong Day Surgery Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. Wollongong Day Surgery Pty Ltd did not oppose the application. The Commission determined the matter on the papers without holding a hearing. The application sought the right for the employees to conduct a ballot regarding protected action, as stipulated in the Act.

The legal issues before the Commission were whether there was a notification time for the proposed agreement and if the requirements under section 443(1) of the Act were fulfilled. The Federation needed to demonstrate that it had genuinely tried to reach an agreement with the Respondent and that a notification period existed. The Federation provided a statutory declaration by Cameron Maxwell Stockley Smith, which outlined the bargaining process and the steps taken to reach an agreement.

The Commission found that the Federation had met the statutory requirements. The declaration confirmed that the Federation had been genuinely attempting to reach an agreement with the Respondent and that a notification period was in place. Therefore, the Commission was satisfied that the conditions for granting the ballot order were met. Consequently, an Order was issued in PR751197, allowing the employees to proceed with the ballot as requested.

The final order granted the Australian Nursing and Midwifery Federation, New South Wales Branch, the right to conduct a protected action ballot for the employees of Wollongong Day Surgery Pty Ltd, in accordance with the provisions of the Fair Work Act 2009. This decision enabled the employees to exercise their rights under the Act to take protected action, subject to the notification period and other relevant provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established