Industrial Action Halted Due to Ballot Error

Key Takeaways

1. Precision is essential for Balloting Agents: The incident highlights the critical need for precision in the balloting process for protected action ballots, including in the provision of the Ballot Report.

2. Role of Fair Work Commission: The Fair Work Commission relies upon the accuracy and integrity of eligible protected action ballot agents, when making decisions about protected industrial action.  This reliance calls for high standards of accuracy in the provision of information to the commission by a eligible protected ballot agent, including Ballot Reports.

In a recent development, protected industrial action by Royal Flying Doctor Service (RFDS) nurses was halted due to an administrative error that undermined the entire ballot process.

The error, involving the misidentification of the union responsible for the ballot, was sufficient for Deputy President Dobson to rule the ballot report as invalid.

Last month, the Australian Nursing and Midwifery Federation (ANMF) successfully secured the right to Protected Action Ballots Order (PABO) from Fair Work Commission (FWC) Commissioner Hunt during negotiations with the RFDS’s Queensland section. This allowed members to vote on various actions, including work bans and seeking patient support for improved wages and conditions.

However, the RFDS, responding to the ANMF’s notice of imminent protected action, raised objections to the validity of the ballot conducted by TrueVote on behalf of what they believed to be the Queensland Nurses and Midwives Union (QNMU). The RFDS argued that the TrueVote ballot report indicated a ballot of QNMU members, not the ANMF, as mandated by the PABO.

The RFDS’s application to the Commission, seeking an order to stop what they deemed unprotected industrial action, contended that the TrueVote Ballot Report was legally insufficient to permit notices of protected industrial action. The crux of their argument rested on the assertion that the ballot was conducted on behalf of the QNMU, not the ANMF, as required by the PABO.

In a unique turn reminiscent of the famous Australian film “The Castle,” the ANMF defended its position before Deputy President Theresa Dobson. The union argued that they had adhered to the Fair Work Act and Commissioner Hunt’s order, emphasising that the RFDS failed to specify any section of the FW Act supporting their claims of an invalid basis for protected action.

Deputy President Dobson highlighted the union’s comparison of the situation to “it’s the vibe, Your Honour,” drawing attention to the claim that the error was merely clerical and that all QNMU members were also members of the ANMF.

Despite the argument that the error was a technical breach, Deputy President Dobson concluded that misnaming the entity’s members in the ballot report was a fundamental error, rendering the report flawed.

In her decision, Deputy President Dobson clarified that her findings did not imply improper conduct of the eligible protected ballot agent, but pertained solely to the non-compliance of the ballot report. Consequently, she issued an order to temporarily halt the intended industrial action based on the defective notice issued by the union.

This development highlights the reliance that the FWC places on an eligible protected ballot agent to conduct IR ballots to the highest standards of accuracy and integrity.