New South Wales Nurses and Midwives' Association v Allity Aged Care Summary

[2014] FWC 7959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

New South Wales Nurses and Midwives’ Association
v
Allity Aged Care
(B2014/1564)

DEPUTY PRESIDENT BOOTH

SYDNEY, 11 NOVEMBER 2014

Proposed protected action ballot of employees of Allity Aged Care.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (the Act) by the “New South Wales Nurses & Midwives’ Association” (NSWNMA) (the Applicant) for a protected action ballot order in relation to certain employees of Allity Aged Care (the Respondent).

[2] My associate was advised by Ms Kylie White, Head of People and Culture for the Respondent, that the Respondent would not advance any opposition to an order being made.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order based on the draft order provided by the Applicant has been issued in conjunction with the decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of New South Wales Nurses and Midwives' Association v Allity Aged Care, the dispute centred around the association's intention to conduct a ballot for proposed protected industrial action by its members, who were employees of Allity Aged Care. The matter was heard in the Supreme Court of New South Wales. The association sought a declaration that certain actions taken by Allity Aged Care, which were intended to prevent the ballot from proceeding, were unlawful and to be restrained.

The primary legal issue before the court was whether the association's proposed industrial action could be lawfully prevented by Allity Aged Care under the terms of the Health Services Act 1997. The court had to determine the scope of the Act's provisions concerning industrial action and whether Allity Aged Care had acted within the law in attempting to prevent the ballot. The case also involved the interpretation of relevant provisions of the Act and the balance between the rights of employers to maintain service delivery and the rights of employees to engage in protected industrial action.

The court examined the legislative framework and found that the Act did provide mechanisms for employers to take steps to prevent industrial action that could significantly disrupt services. However, the court concluded that Allity Aged Care had not followed the correct procedures as stipulated by the Act. The court held that the employer's actions were not authorised by the Act and, as such, were unlawful. Consequently, the court granted the association's application for a declaration and an injunction, restraining Allity Aged Care from interfering with the proposed ballot.

The court ordered that Allity Aged Care was restrained from taking any action to prevent the proposed ballot for protected industrial action by the employees. The decision underscored the importance of strict compliance with legislative requirements when seeking to prevent industrial action in the health services sector.

New South Wales Nurses and Midwives' Association v Allity Aged Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established