Australian Nursing and Midwifery Federation v Summary

[2024] FWC 2947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Healthe Care Valley Pty Ltd, Hobson Healthcare Werribee Pty Ltd and Hobson Healthcare Sydenham Pty Ltd

(B2024/1386)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 OCTOBER 2024

Proposed protected action ballot of employees of Healthe Care Valley Pty Ltd, Hobson Healthcare Werribee Pty Ltd and Hobson Healthcare Sydenham Pty Ltd

This is an application by the ANMF (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 Healthe Care Valley Pty Ltd, Hobson Healthcare Werribee Pty Ltd and Hobson Healthcare Sydenham Pty Ltd (Healthe Care or Employers). I observe that the Employers are related businesses.

On 23 October 2024, the Commission was advised that the Employers, in effect, did not object to the Application as amended following discussions between the parties. I observe that certain other consequential changes were made to the proposed order following consultation.

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, Branch Secretary, setting out the steps taken by the ANMF in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with Healthe Care, 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 4 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of minimum written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of five (5) working days applies to items 22 to 26 as listed within Clause five (5) of the Order.

An Order has been separately issued in PR780541.

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, 7 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) has applied to the Fair Work Commission for a protected action ballot order concerning employees of Healthe Care Valley Pty Ltd, Hobson Healthcare Werribee Pty Ltd, and Hobson Healthcare Sydenham Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, seeking permission for the ANMF to conduct a ballot to determine whether its members are willing to take protected industrial action. The employers, who are related businesses, did not object to the application following discussions with the ANMF, leading the Commission to determine the matter on the papers without a hearing.

The legal issues before the Deputy President involved determining whether the ANMF had met the requirements for a protected action ballot order, including showing that there was a notification period for the proposed agreement and that all bargaining had been done in good faith. The Deputy President needed to verify if the conditions under section 443 of the Act were satisfied and whether Vero Engagement & Voting Solutions Pty Ltd was an appropriate agent to conduct the ballot. Additionally, the Deputy President had to decide if exceptional circumstances justified extending the minimum written notice period for certain items in the proposed agreement.

The Deputy President found that the ANMF had satisfied the requirements for a ballot order and approved the use of Vero as the ballot agent. The date for closing the voting was set at 4 November 2024, which aligns with the seven working days from the making of the order. The Deputy President also determined that there were exceptional circumstances warranting an extended notice period of five working days for certain items, as outlined in the Order. A separate Order was issued to mandate a compulsory conciliation conference and to direct the parties to attend ready for meaningful negotiations.

Australian Nursing and Midwifery Federation v

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established