s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of CareFlight Limited - non-AEC ballot electronic voting

• [1] This is an application by the Australian Nursing and Midwifery Federation (ANMF or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of CareFlight Limited (CareFlight or Employer). CareFlight is an aeromedical service provider delivering time-critical emergency, retrieval, and inter-hospital transfer services to critically ill and injured patients.

• [2] On 12 January 2026, the Commission was advised that the Employer objected to the application on multiple grounds. The Applicant subsequently filed an amended application which resolved all but one of the Employer's objections. The remaining objection by CareFlight was its contention that all of the proposed forms of protected industrial action (PIA) could not be taken without impacting patient safety and creating a risk of harm to patients. It contended that this meant that the Commission should not grant the application.

• [3] The ANMF contended in response that only some of the forms of questions in the proposed Order had the potential to affect patient care. Further, it is contended that the condition "provided patient safety is not compromised" provided in the preamble to the ballot questions would mitigate any potential risk to patient safety. Finally, the ANMF contended that "Flight Nurses and Flight Nurse/Midwives are registered with the Australian Health Practitioners Regulation Agency and bound by the Nursing and Midwifery Board of Australia (NMBA) code of conduct forbidding conduct that causes a risk to patient safety or harm of any kind" and therefore, "there will be no risk to patient safety or risk of significant harm because the Flight Nurses and Flight Nurse/Midwives taking the action will not allow that to occur, as is their obligation under the NMBA code of conduct."

• [4] In reply, CareFlight rejected the ANMF's assertions and held that the proposed forms of PIA could not occur without compromising patient safety. Ultimately, for reasons to follow, it has not been necessary for the Commission to determine the dispute about the impact of the potential PIA at this point.

• [5] In the circumstances, I decided to convene a hearing today to deal with the matter. During the hearing, the parties held some further constructive discussions and ultimately the ANMF sought to further amend the proposed Order to remove one ballot question and to amend another. CareFlight also then withdrew the objection to the making of the PABO in light of the scheme of the Act.

• [6] Given these developments, I have granted leave to further amend the application to reflect the proposed revised ballot questions and dealt with the application on that basis.

• [7] Section 437 of the Act provides as follows:

"437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and

(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.

Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

(6) The application must be accompanied by any documents and other information prescribed by the regulations."

"443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;

(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable."

• [9] I observe for completeness that there are other statutory requirements for a PABO to be issued that were not in contest in this matter and do not arise from the originally disputed aspect. Further, compliance with the matters raised in the provisions above is also not otherwise in dispute.

• [10] Given the basis of the revised positions, it is appropriate that I say something about the bargaining scheme of the Act which is outlined in various decisions of the Commission including in John Holland v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and The Australian Workers' Union,[1] and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.[2] In general terms, the function of the PABO is established by Part 3-3 of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take PIA in support of bargaining for relevant enterprise agreements. Further, the taking of PIA by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement.

• [11] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,[3] whether the action is notified in accordance with the requirements of the Act,[4] and whether it is industrial action within the meaning of the Act.[5] Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population, or of part of it, or causes significant damage to the Australian economy, or an important part of it,[6] or causes significant economic harm.[7] Industrial action that is not PIA may be prevented.[8]

• [12] In relation to the asserted safety concerns in this case, I would accept that depending upon the precise context and the form, duration and nature of industrial action, such concerns could arise in this enterprise. However, no basis under the terms of s.437 and related provisions has been suggested that would permit the Commission to deny the application on that basis. Further, I observe that because the ANMF has chosen to qualify all of its ballot questions with the caveat (provided patient safety is not compromised) it is at least arguable that any notified industrial action would only be protected if it met that condition. However, that is also potentially a matter for a later stage.

• [13] Accordingly, the potential (safety) impact of the proposed questions was not presently relevant. I observe that the Commission does not, in determining a PABO application, approve or disapprove of the proposed forms of industrial action beyond consideration of the ballot questions required by s.443(1)(a) and s.443(3)(d) of the Act. That is, the ballot questions must state the nature of the proposed industrial action. The word "nature" is one of high generality, and in context refers to the "character, kind or sort" of the industrial action. The proposed action specified in the question must be something that is capable of constituting "industrial action" within the meaning of the definition of that expression in s.19(1) of the Act.[9] I find that the questions concerned here do so.

• [14] Further, consistent with the scheme of the Act, the ballot questions (if the PABO is issued and the ballot endorses the questions) set the broad nature of the potential PIA. The detail of what industrial action is to occur (within the parameters of the endorsed ballot questions), is provided when the applicant gives notice of the industrial action to the employer. This must meet the particular notice requirements of s.414 of the Act. I observe that it is at this point that the Employers' concerns may be relevant, noting that the ANMF may elect to notify action in a manner that takes account of apparent safety matters.

• [15] On the basis of the material before me, including the declaration of Shane Klein, Industrial Officer, setting out the steps taken by the ANMF in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with CareFlight, 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.

• [16] The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.

• [17] 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 6 February 2026.[10] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [18] An Order has been separately issued in PR795678.

• [19] 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.

[1] [2010] FWAFB 526.

[2] [2012] FCAFC 53.

[3] Sections 437, 408 and 409 of the Act.

[9] National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 at [50].

[10] This is, in effect, 16 working days from the making of the Order and was the specific date sought in the application.

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