s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Epworth Medical Imaging Pty Ltd

• [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 in relation to certain employees of Epworth Medical Imaging Pty Ltd (Epworth or Employer).

• [2] On 28 March 2025, the Commission was advised that the Employer, in effect, did not object to the Application.

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

• [4] On the basis of the material before me, including the declaration of Catherine Larkins, 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 Epworth, 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.

• [5] The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [6] In the application, the ANMF sought that the ballot close within seven days of the Order on the basis that this is not inappropriate or impracticable for the electronic vote to be carried out expeditiously.

• [7] In exercising the discretion in s. 443(3A), the Commission may have regard to requirements beyond those associated with how quickly the ballot can be conducted.[1] I have had regard to these matters and the position of the ANMF and determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close is 10 April 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] An Order has been separately issued in PR785683.

• [9] 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] CEPU v Nilsen (NSW) Pty Ltd [2023] FWCFB 134, [66].

[2] This is, in effect, 8 working days from the making of the Order.

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