v Ramsay Health Care Australia Pty Ltd and BDS Operator Pty Ltd T/A Ballina Day Surgery

[2024] FWC 2005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Australian Nursing and Midwifery Federation

Ramsay Health Care Australia Pty Ltd and BDS Operator Pty Ltd T/A Ballina Day Surgery

(B2024/953)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 JULY 2024

Application to extend the 30 day period in relation to B2024/758.

This matter concerns the declaration of the result of a protected action ballot PR776055 held in matter B2024/758 and declared on 1 July 2024.

The Australian Nursing and Midwifery Federation has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Ramsay Health Care Australia Pty Ltd and BDS Operator Pty Ltd trading as Ballina Day Surgery has advised the Commission they have no objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 29 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation applied to the Fair Work Commission (FWC) to extend the 30-day period during which industrial action could be authorised by a protected action ballot. The application was in relation to matter B2024/758, concerning employees of Ramsay Health Care Australia Pty Ltd and BDS Operator Pty Ltd trading as Ballina Day Surgery. The relevant protected action ballot had been held and declared on 1 July 2024. The Federation sought an extension of the period under section 459(3) of the Fair Work Act 2009.

The key legal issue was whether the FWC had the authority to extend the 30-day period for protected industrial action as per section 459(3) of the Fair Work Act 2009. The application was made on the basis that the period had not been previously extended and that the employer had no objection to the extension. The FWC had to determine whether the application met the statutory requirements for such an extension.

The Deputy President of the FWC, Hampton, considered that the requirements of the Act had been met. The relevant conditions for the extension were present: the application had been made by the relevant applicant, and the period had not been previously extended. Additionally, Ramsay Health Care Australia Pty Ltd and BDS Operator Pty Ltd had no objection to the extension. Therefore, the Deputy President was satisfied that the application should be granted. The 30-day period for the commencement of protected industrial action was extended by a further 30 days from 29 July 2024.

Pursuant to section 459(3) of the Fair Work Act 2009, the FWC ordered that the 30-day period for the commencement of protected industrial action for eligible employees employed by the Employer be extended by a further 30 days. This order was to take effect from 29 July 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established