Royal Flying Doctor Service (Queensland Section) Limited v Australian Nursing and Midwifery Federation

[2023] FWC 3025

[2023] FWC 3025

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.418—Industrial action

Royal Flying Doctor Service (Queensland Section) Limited
v

Australian Nursing and Midwifery Federation

(C2023/7052)

DEPUTY PRESIDENT DOBSON BRISBANE, 18 NOVEMBER 2023

Application for an order to stop unprotected industrial action – Incorrect entity on Ballot Report – Whether notice to take industrial action is validly given – Notice found to be invalid - Orders granted

1. An application for an order under s.418 of the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) at 9.17am on 17 November 2023 by Royal Flying Doctor Service (Queensland Section) Limited (the Employer). The application was accompanied by the notices sent by the Australian Nursing and Midwifery Federation (ANMF/the Union) regarding industrial action and the Employer’s response to these.

1. This application involved a Protected Action Ballot Order (the Order/PABO) issued by the Commission on 24 October 2023[1]. The Order specified that the vote would be conducted by True Vote Pty Ltd and listed the parties on the Order as Australian Nursing and Midwifery Federation and Royal Flying Doctor Service of Australia (Queensland Section) Limited. On 7 November 2023, TrueVote Pty Ltd provided the report conducted by them which named on the covering page the Queensland Nurses and Midwives Union (QNMU).[2]

1. The present application has been made by the Employer as a result of a notice of protected industrial action issued by the Union on 14 November 2023 (Notice).[3] The Employer, upon receipt of the Notice wrote back to the Union on 15 November 2023, alleging that the Notice was invalid for the following reasons:

“Your notice states, in the second paragraph:

This action is authorised by a ballot of ANMF members conducted in accordance with an order made by Commissioner Hunt on 24 October 2023 in B2023/1153, the results of which ballot were declared on 7 November 2023.

The notice provided on Tuesday 14 November is fatally defective, and invalid, in that the ANMF have provided no evidence of a valid ballot of ANMF members pursuant to the Protected Action Ballot Order (“PABO”) made by Commissioner Hunt on 24 October, 2023 in B2023/1153 required for the taking of protected industrial action.

The relevant application for a PABO, under s 437 of the Fair Work Act 2009 (“FWA”), was made by the Australian Nursing and Midwifery Federation. The resultant order of
Commissioner Hunt of 24 October 2023, says in paragraphs 1 and 3 respectively:

1. PROTECTED ACTION BALLOT TO BE HELD

Australian Nursing and Midwifery Federation (ANMF) is to hold a
protected action ballot of employees of Royal Flying Doctor
Service of Australia (Queensland Section) Limited described in
clause 3 of this order.

3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED

In accordance with s.437(5) of the Act, the employees to be
balloted are those who will be covered by the proposed
enterprises agreement and are members of, and are represented
by the bargaining representative who is the applicant for this
protected…