Australian Nursing and Midwifery Federation v Wollongong Day Surgery Pty Ltd T/A Wollongong Day Surgery

[2023] FWC 877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Australian Nursing and Midwifery Federation
v

Wollongong Day Surgery Pty Ltd T/A Wollongong Day Surgery

(B2023/329)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 APRIL 2023

Application to extend the 30 day period in relation to B2023/165

On 6 April 2023, the Australian Nursing and Midwifery Federation (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR751197 made on 24 February 2023. The Order applies to certain employees of Wollongong Day Surgery Pty Ltd T/A Wollongong Day Surgery (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 9 March 2023. Pursuant to s. 459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 7 April 2023.

The Respondent did not give an indication to the Commission whether it consents or opposes the application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Australian Nursing and Midwifery Federation who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 7 April 2023, the extension period will operate from 7 April 2023.

An order has been separately issued in PR761075.

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 to extend the period of time allowed for protected industrial action against Wollongong Day Surgery Pty Ltd. The dispute originated from a protected action ballot that was conducted under section 459 of the Fair Work Act 2009, which allows employees to organise and participate in protected action. The ballot was approved, and the employees voted in favour of taking industrial action, leading to an initial 30-day period starting from the declaration of the ballot results on 9 March 2023. The Federation sought an extension of this period, which was set to expire on 7 April 2023.

The legal issues before the Commission involved whether the application for an extension met the requirements set out in section 459(3) of the Act and if the 30-day period for protected action could be appropriately extended. The key consideration was whether the conditions of the Act for such an extension were satisfied, particularly given that this was the first extension request and no opposition was filed by the employer.

The Commission found that the application met the criteria for an extension as specified in section 459(3) of the Act. It noted that the initial 30-day period had not been previously extended and that the Federation had fulfilled all the necessary requirements. Consequently, the Commission decided that the period for protected action should be extended from 7 April 2023. This decision was made based on the documentation provided by the Federation and in the absence of any opposition from the employer.

The Commission issued an order extending the 30-day period for protected action from 7 April 2023. This decision allows the nursing and midwifery employees of Wollongong Day Surgery to continue their authorised industrial action beyond the initial period, ensuring that they have sufficient time to pursue their claims.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established