Austin Health v Health Services Union
[2012] FWA 7098
•31 AUGUST 2012
[2012] FWA 7098 |
|
DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Austin Health
v
Health Services Union
(B2012/1457)
COMMISSIONER GREGORY | MELBOURNE, 31 AUGUST 2012 |
Order to suspend protected industrial action.
INTRODUCTION
[1] This is an application by Austin Health (the Applicant) under s.424 of the Fair Work Act 2009 (the Act) for an order to suspend protected industrial action being taken by the Health Services Union of Australia (Victorian No. 4 Branch) (HSU) under s.414 of the Act.
[2] On 14 June 2012 Fair Work Australia issued a protected action ballot Order [PR525151] which required the HSU to conduct a ballot of those employees at Austin Health, who would be covered by the proposed agreement. On 10 July 2012 the Australian Electoral Commission (AEC) declared the outcome and the successful ballot authorised, inter alia, “bans on the commissioning of new software and equipment”.
[3] On 19 July 2012 the HSU served a notice on Austin Heath notifying its intention to organise industrial action by its members, commencing on 25 July 2012, including the ban on commissioning new software and equipment. The notice also stated the action will continue in force until agreement is reached.
[4] The present application by Austin Health states that the industrial action “threatens to endanger the health and/or welfare of part of the population, namely cancer patients, potential cancer patients and those on waiting lists of Austin Health for radiotherapy cancer treatment, and the families of such people.” The application indicates this will occur, in particular, because of the impact of bans on commissioning the:
- Elekta Linear Accelerators to be used to treat cancer patients at the Olivia Newton John Cancer and Wellness Centre (ONJCW Centre), which is part of Austin Health;
- Pantak radiotherapy equipment to be used to treat skin cancer patients at the ONJCW Centre; and
- Varian Linear Accelerator to be used to treat cancer patients at the Ballarat Regional Integrated Cancer Centre.
[5] However, in the course of the proceedings the HSU withdrew the bans referred to above in dot points two and three so that the remaining matter for determination concerns the impact of the bans on installation and commissioning of the Elekta Linear Accelerators at the Olivia Newton John Cancer and Wellness Centre.
[6] There was no issue between the parties that those bans were in place and protected industrial action was being engaged in. It was also acknowledged by the parties that any order made would terminate or suspend all industrial action authorised by the protected action ballot order, and not just the bans that have prompted the Application.
[7] The Application was made on 6 August 2012 and heard on the 8 and 10 August 2012. At the conclusion of the proceedings I indicated I was not in a position to determine the matter at that time. I accordingly issued an Interim Order 1 as I am required to do in accordance with s.424(4).
QUESTION TO BE DECIDED
[8] The issue left to be decided is whether the bans on commissioning new software and equipment, and their particular impact on commissioning the Elektra Linear Accelerators at the ONJCW Centre at Austin Health, is protected industrial action that threatens to endanger the health and/or welfare of the population, or part of it. If I am satisfied about that I must make an order terminating or suspending the protected industrial action. In the present matter the Applicant submits the preferred outcome is for the action to be suspended rather than terminated.
THE LEGISLATION AND LAW TO BE APPLIED
[9] Section 424 of the Act provides:
“Suspension or termination of protected industrial action
(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(iii) a person prescribed by the regulations.
Application must be determined within 5 days
(3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made.
Interim orders
(4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined.”
[10] The operation of these provisions have been considered in a number of recent decisions of this Tribunal. In National Tertiary Education Industry Union v University of South Australia 2 a Full Bench of Fair Work Australia found that:
“Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:
‘The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.
It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining’. [2010] FWAFB 1014” 3
[11] This requirement for the impact of the industrial action to extend beyond “an inconvenience” was confirmed by another Full Bench in Victorian Hospitals’ Industrial Association v. Australian Nursing Federation: 4
“We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s.424(1), including the references to “welfare” of the population and the concept of endangerment. These are commonly used words and expressions which are widely understood in the community and which should be given their ordinary meaning. Conduct that puts a person’s physical or mental state at risk of material detriment - or that materially hinders or prevents improvement in a person’s poor physical or mental state - may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger.” 5
[12] Importantly in the context of the present matter the Full Bench also indicated:
“We also recognise that there are delays and problems which occur in the public health system on a regular basis which result in, for example, prolonged stays for patients in Emergency Departments and the cancellation of elective surgery. It is part of the normal function of hospital management to deal with such problems and challenges so as to seek to minimise their impact. However, the protected industrial action being taken by the ANF and its members is likely to result in an increase in such delays and problems and to exacerbate the difficulties for hospital management in dealing with them. The evidence before us is that in such circumstances the increased likelihood of such occurrences will have the effect of putting the welfare and safety of patients at risk and jeopardising their health. The protected industrial action will add extra pressure to a system already under pressure.
Overall, we consider that the impact of the protected industrial action has been to adversely affect the quality and timeliness of the treatment that can be provided to patients, especially those in Emergency Departments and those requiring surgical procedures. In our view, the impact is of such a nature as to cause more than just inconvenience to these people but to endanger their safety or health or their welfare. Furthermore we consider that this adverse impact on the users of the Victorian public health system will be aggravated as the industrial action by the ANF and its members continues to be implemented with the aim of reducing the capacity of the system through bed closures, cancellations of operating sessions and other bans.
In reaching these conclusions, we note that considerable efforts are being made by hospitals to minimise the adverse effects of the industrial action on their operations and, in particular, on patient treatment and care. However given the size and wide coverage of the public health system in Victoria, and the likely cumulative effect of the industrial action in reducing over time the capacity of the system, there is a limit to what can be achieved through such measures. There is also only limited capacity to use the resources of private hospitals.” 6
[13] The Full Bench in that matter also confirmed:
“Whether an order should be made under s.424 will be a matter to be determined upon a consideration of all the circumstances and having regard to the evidence and submissions before FWA, 7 and further, ‘It is clear that there must be an appropriate evidential basis to found such a satisfaction.’”8
[14] The Full Bench did find in that matter that the impact of the protected industrial action was of such a nature to cause more than just inconvenience to patients in the Victorian Public Health System and was endangering their health, safety and welfare. It accordingly issued an order suspending the protected industrial action for a period of 90 days.
[15] However, by way of contrast in G4S Custodial Services Pty Ltd v Health Services Union of Australia (Vic No. 2 Branch) 9 Commissioner Bissett rejected an application made under s.424 on the basis she was not satisfied the various bans proposed by the Union threatened to endanger the life, personal safety or health, or the welfare, of the population or part of it. She stated in part:
“Whilst I appreciate that the facility at which it is intended to take industrial action does house dangerous people and that those people can present a risk to members of the public or staff of the facility I do not consider the proposed industrial action alters the risk that already exists at the facility such that I should grant the application.” 10
[16] Commissioner Bissett also referred to the decision of Senior Deputy President Kaufman in Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union 11 in which he determined the approach to be adopted should be on the basis of “probabilities” rather than “possibilities”. Commissioner Bissett accordingly concluded in the matter before her:
“That is, in determining if the protected action would threaten to endanger life etc it must be on the basis of the probability of the action doing so, not the mere possibility.” 12
THE FACTS
[17] The Applicant provided evidence from the following witnesses:
- Andrew Kinnersly, Executive Director, Finance Information and Business Development at Ballarat Health Services,
- Dominic Au-Yeung, Manager of Radiation/Oncology and Chief Radiation Therapist at Austin Health,
- Professor Chris Hamilton, Director of Radiation/Oncology at Austin Health, and
- Kate Lehane from Minter Ellison.
[18] Witness evidence was provided for the HSU by:
- Nikki Shelton, a Medical Physicist with Austin Health, and
- Paul Elliot, Assistant Secretary of the HSU.
[19] In view of the HSU’s withdrawal of the bans at Ballarat and in regard to the operation of the Pantak machine much of that witness evidence is no longer relevant to the question at issue and I have accordingly not made reference to it in this decision.
[20] The following evidence was provided about the impact of the bans on the relocation and commissioning of the Linear Accelerator (Linac) machines at the ONJCW Centre.
[21] Mr Au-Yeung indicated that his key role as Manager, Radiation an Oncology at the Austin Health involves:
“. . . managing the operation of the radiation oncology service. The key objective . . . is to ensure that cancer patients who are required to undertake a course of radiotherapy will receive that treatment within a clinically acceptable timeline. This normally involves managing the radiotherapy waiting times for patients within the current treatment resources available. . .” 13
[22] He indicated:
“At Austin Health, the major treatment units delivering radiotherapy are called Linear Accelerators, which are usually just called 'Linacs' (Linac). A Linac machine is a large, expensive and complex piece of high energy X-Ray medical equipment which can be used to treat a variety of cancers such as breast, prostrate, lung, liver and pancreatic cancer. One Linac machine can generally treat about 35 to 40 patients per day
Austin Health currently has two active Linacs in clinical use at its Heidelberg sites (and it has recently bought and installed a third unit at the new Olivia Newton John Cancer and Wellness Centre- ONJCWC).” 14
[23] He continued to indicate:
“As a piece of specialist equipment, a Linac machine requires a long commissioning time before it can be introduced for clinical use. The process of preparing a Linac machine for use with patients broadly includes the following:
(a) physical delivery and installation of the unit by the supplier;
(b) an 'acceptance' process, which is an initial testing/commission phase required to be performed by Austin Health's medical physicists in conjunction with experts from the equipment supplier (Austin Health's medical physicists are described further below); and
(c) a much more extended and comprehensive commissioning process, performed by medical physicists.” 15
[24] He stated that Austin Health employs four qualified medical physicists at Heidelberg. They are specialised medical physicists working in the field of Radiation Oncology:
“Medical physicists are responsible for ensuring the radiation dose delivered to cancer patients is accurate and error free. They are also responsible for commissioning, radiotherapy equipment and conducting quality assurance procedures on all active radiotherapy equipment.” 16
[25] His evidence indicated that Austin Health now has two Linac machines located at its repatriation site at Heidelberg but is now in the process of upgrading this facility. It will achieve this by:
“(a) Moving all cancer-related services currently at the Repatriation Hospital to the new ONJCWC at Austin Hospital. Currently patients requiring both chemotherapy and radiation therapy concurrently have to travel between the two Heidelberg sites. . .
(b) Increasing its Linac machine numbers from 2 to 3. Austin Health plans to have 3 Linac machines available to treat patients in Heidelberg. Two of these will be those from the Repatriation site and one will be new . . .” 17
[26] The process has been carefully planned and staged over time so that two machines will be available at all times.
[27] He indicated it requires:
“. . . The Linac machines at the Repatriation site will need to be "de-commissioned" and moved to the ONJCWC to be "re-commissioned".
The de-commissioning and re-commissioning process at the Repatriation site Linac machines has been contracted to Elekta Pty Ltd (Elekta), who is the manufacturer of the three Linac machines at the Heidelberg sites . . .” 18
[28] He stated the work is currently scheduled on the following basis:
“(a) 6 August 2012 - new Linac at ONJCWC commences treatment of patients.
(b) 20 August 2012 - a Linac machine at Repatriation Hospital is shut down and moved to ONJCWC for re-commissioning.
(c) Mid January 2013 - the re-commissioning stage is complete and the second machine at ONJCWC will start to treat patients.
(d) End of January 2013 - the final machine at the Repatriation Hospital is shut down and moved to ONJCWC for re-commissioning.
(e) Mid July 2013 - re-commissioning on the final machine will be complete and it will begin to start taking patients.
(f) By Mid July 2013 ONJCWC will be fully integrated with 3 operational Linac machines.” 19
[29] In his view if the timeframe was delayed further problems could result because of the availability of the contractor to fit the work within its timetable. He indicated the impact on patients could be threefold:
“(a) First, any delay now will cause a minimum equivalent delay in the time before Austin Health is able to cut its waiting lists by having three fully operational Linac machines.
(b) Second, if Elekta is unable to move one of the existing Linac machines from the Repatriation Hospital before September this year (in tum requiring the machine currently at ONJCWC to start taking patients by no later than 13 August), this will cause a minimum of a further month delay and possibly longer due to Elekta's limited availability.
(c) Third, any delay now causes a delay in which at least 50% of Austin Health's Heidelberg patients will be able to be treated at the fully integrated ONJCWC. Until two Linac machines are fully operational at the ONJCWC, about 50% of patients will continue to be required to travel between the Repatriation Hospital (where the Linac machine is located) and the ONJCWC (where nearly all other facilities are located).” 20
[30] He estimated if:
“ . . . Austin Health misses its current 'window' with Elekta, then if that window is missed by even 2 weeks, the delays I describe above for the Linac machines will be a minimum of 6 weeks. If Austin Health is unable to undertake commissioning work for another 3 months, for example, then the delays I describe about will be about 3 months.
Based on current patient loads, the number of patients who would be affected by any of these delays is about 35 for each week of delay.” 21
[31] In cross-examination Mr Au-Yeung indicated the intended date when all three Linacs would be operational at the ONJCW Centre was mid-July 2013 and it was anticipated major benefits in patient care would result from having the entire radiation oncology service located in one building with the other cancer treatment services.
[32] Professor Chris Hamilton is the Director of Radiation/Oncology at Austin Health. He indicated in his view:
“With a few exceptions, the treatment of cancer is more time sensitive than any other field of medicine. There are relatively brief windows, during which particular forms of treatment will be significantly more effective than if the same treatment was delivered at a later stage. Time is of the essence and a week can mean a great deal to some patients in terms of chances of success... and ... delays (even short delays of, say, one or two weeks) can have adverse medical outcomes. What this means is that when a patient has to wait for a course of treatment at a hospital to become available, it is important that the waiting time (usually called the waiting list) is as low as possible. Management of waiting lists is very complex, and it involves a balance between different patients, different cancers, each of which have different urgencies.” 22
[33] He stated:
“The addition of an additional Linac machine will increase capacity and significantly improve patient waiting lists. According to Victorian Department of Health modelling, waiting lists will be minimised, to around 2-3 weeks. (the time taken to prepare the radiation treatment plan) That is a very significant improvement.
Relocating Radiation Oncology from the Heidelberg Repatriation site to ONJCWC will also consolidate all the cancer services into one building so that patients will not have to travel to multiple campuses to receive chemotherapy and radiotherapy. This is, of itself, important for patient welfare.” 23
[34] He also indicated he had been informed by Mr Au-Yeung the work bans could delay the project and:
“. . . Any delay in the time in which all three Linacs become operational will mean patients will stay on waiting lists (currently they are around 6 weeks) rather than getting treatment straight away.
In addition to the clinical impacts of delay at both sites, there is a large 'human element' to suffering with cancer which is unquantifiable in strictly medical I scientific terms. In my expert opinion, the longer patients have to endure lengthy commutes for treatment, either alone or with carers, the more their health and wellbeing is affected.” 24
[35] In cross-examination Professor Hamilton indicated there was no greater risk at the present time to the health and safety and welfare of cancer patients at Austin Health who were being treated by the Linacs.
[36] Ms. Nikki Shelton gave evidence on behalf of the HSU. She has been employed by Austin Health since April 2005 and is a Medical Physicist specialising in Radiational Oncology. She confirmed:
“On 25 July the Medical Physicists commenced taking Industrial Action which forms the basis of the Applicant’s application, that being a ‘ban on commissioning new software and equipment.’ ” 25
[37] In terms of what commissioning of the Linacs involves she stated:
“The process of commissioning is deemed to be complete when all equipment and QA processes necessary to safely scan, plan, verify and treat a patient are in place. It encompasses the entire patient treatment and data chain including quality processes for all associated equipment. It is not solely related to commissioning tasks associated with a linear accelerator. There is no definition for post-commissioning.” 26
[38] She also indicated Austin Health had tendered out part of the commissioning work to Genesis Care, however:
“The Austin Chief Physicist was responsible for compiling a list of tasks and to have oversight of the entire commissioning process associated with both the Melbourne and Ballarat project.” 27
[39] Genesis Care had also not been able to complete all the necessary commissioning tasks, and there were still outstanding pieces of work.
[40] She indicated she attended a meeting on 20 July scheduled by the Chief Physicist, Dr Kym Rykers, to discuss the bans and their potential impact. She updated the group and indicated the bans were not to impact on the current standards of clinical care provided to patients. This was confirmed in a communication from the HSU to Austin Health which indicated in part:
“These bans will not directly affect the provision or standard of excellence of clinical care that we currently provide to our patients. There are at this time 2 clinical linear accelerators being supported by Physics there will be no shortfalls in any patient care as it stands today.” 28
[41] She also indicated:
“The timelines for commissioning AH3 and then relocating the existing linacs (SG1 and SG2) was designed to ensure that patient care would not be adversely affected. . . At any given time, there would be two linear accelerators (linacs) fully operational to provide radiation treatment. In order to maintain our current levels of clinical practice, patients will be assigned to a specific linac for the course of their treatment. There have been measures put in place however to allow for unexpected breakdowns of a machine and to ensure that the two linacs work as fail-safes for one another. Patients can be treated by either machine as the technology exists to adapt their treatment plans to either the old or new linac.
Patients can continue to be treated across 2 sites with no risk. There is no risk to patients should the time to move the entire service to ONJC&WC take 6 months or longer. The planned date for commencement of treating with three linacs is the 13/8/2013.This is based on a smooth transition and no further building works to be required at the ONJCWC site.” 29
[42] She also stated that throughout the project of relocation and commissioning there have already been multiple delays and extensions to timelines due to various factors. These have included a flooding accident, delays whilst appropriate licences were obtained, as well as problems and delays associated with the air-conditioning system. She also indicated delays in finding and recruiting relevantly qualified and experienced staff posed an issue in terms of the ability to provide both appropriate and timely clinical treatment and support for the commissioning process.
[43] She agreed in cross-examination that once the three Linac machines were in place at the ONJCW Centre there will be an improvement in waiting times and patient treatment.
THE DECISION
[44] This is an unusual application. In making that statement I am not expressing a view about the merits or otherwise of the application, but simply indicating the circumstances involved are different from those commonly found in applications made pursuant to s.424. Invariably those applications are directed to bringing to an end or suspending protected industrial action said to be threatening, or about to threaten, the population or part of it at the time the application is made.
[45] That is not the case in the present matter. The application does seek to suspend protected industrial action now being engaged in. However, the threat to the population, or part of it, that the Applicant claims stems from that action will not impact until a point sometime after July next year. This is because the current bans are said to be delaying the ongoing, long term process of installation, relocation and commissioning of the three Linac machines that will eventually provide enhanced patient treatment and reduced wait lists at Austin Health’s Olivia Newton John Cancer and Wellness Centre.
[46] The part of the population impacted, in the Applicant’s submissions, are accordingly those people in need of cancer treatment at Austin Health after July 2013, whose ability to receive that treatment then will be delayed or diminished because the three Linac machines will not be operational due to the delays attributable to the protected industrial action now being engaged in.
[47] In my view these circumstances do not prevent an order being made in the terms sought by the Applicant, nor do they diminish the significance of the application. The impact of delays in the availability of treatment for patients suffering from cancer does not need to be emphasised. If protected industrial action is having that effect now or, for example, in twelve or eighteen months time it might well provide the basis for an order to terminate or suspend that action.
[48] However, it also seems almost inevitable that the present situation makes it more difficult to obtain an order of the kind sought simply because of the length of time between the alleged cause of the threat, the current protected industrial action, and the alleged impact, the delays in improved patient care to be realised in the second half of next year. For example, given the extended timeframe are the bans the only cause of the delay or are there other factors that are impacting or going to impact? What more, for example, could Austin Health do or have done to put in place alternate arrangements to limit or avoid the impact of the bans? Are there other unforeseen factors that are going to impact as well between now and then?
[49] It is clear from the legislation and the authorities I have referred to that I am required to have regard to all the relevant circumstances and must be satisfied an appropriate evidence base exists to support any order made. The impact of any protected industrial action must also extend beyond mere inconvenience. The scheme of the Act and the emphasis on enterprise bargaining mean that protected industrial action is intended to have the potential to impact upon an employer. That ability should not be unreasonably restricted.
[50] I must also be satisfied it is probable the action would threaten the health or welfare of that part of the population identified in the application; it is not sufficient for there to simply be a possibility that outcome will result.
[51] The evidence of Mr Au-Yeung on behalf of the Applicant and the evidence of Ms Shelton for the HSU are of most relevance in the determination of his matter. Mr Au-Yeung manages the operation of the radiation oncology services at Austin Health. He is currently involved in the process that will see the three Linac machines installed and operating at the new ONJCW Centre. This involves the transfer of two machines from the repatriation hospital and the installation of one new machine. The current intention is to have the three machines in place and operating by mid-July next year, and it is from then the improvements to patient care and the reductions in wait lists are expected to occur.
[52] Mr Au-Yeung states the complex and staged acceptance and commissioning process has to be followed in accordance with the proposed timeline if this target date is to be hit. In this context he has a particular concern about the impact of any delay on the availably of the external contractors engaged to assist in the project. The bans have already impacted on commencement of the new Linac which meant decommissioning of one of the existing units has been delayed. In his view it is possible significant delays could occur if the current bans impact on the availability of the contractor to deliver in terms of its role in the process in accordance with the allotted time-frame. He indicated, in his view, based on the current patient loads and the improvements the three machines were intended to deliver, the number of patients who could be expected to be affected by the delays could be “. . . about 35 for each week of delay.”
[53] The evidence of Ms Shelton for the HSU emphasises the intention to ensure current levels of patient care are maintained throughout the process of relocation and installation. She also indicates there have already been a range of factors that have contributed to delays in the project and extended the intended time line, aside from any impact the bans might be having. These include environmental and building factors. The intended commencement date is accordingly dependent in large part on a smooth transition and the avoidance of any further necessary building works.
[54] The installation and relocation of the Linac machines is clearly a significant undertaking. It has been carefully planned over an extended timeframe with an important objective being to ensure that two machines are operating throughout in order to sustain existing levels of patient care. The process is also complicated by the fact commissioning is being carried out with the assistance of external consultants, whose availability is limited.
[55] I am satisfied that the current bans have the potential to impact on the timing and the overall process of relocation and commissioning. However, I am also satisfied other factors have already and have the potential to again impact in a way that disrupts and extends the current projected timeframe. If this occurs it will mean the provision of enhanced cancer treatment and the reduction in wait lists will be pushed out beyond the current July/August 2013 date. That would clearly be unfortunate and more than an inconvenience for those requiring cancer treatment at that time.
[56] However, I am not satisfied at this point, approximately twelve months from that date, that it can be concluded now that it is probable the current bans are going to be the cause of delay in a way that enables me to be satisfied they threaten to endanger the health or the welfare of that part of the population that has been identified. It is possible they may have that impact. However, given the balance the current framework seeks to achieve by on the one hand enabling a union and employees to press their claims in enterprise bargaining and, on the other, the intention to stop or suspend the impact of industrial action that s.424 seeks to prevent, the existence of that possibility alone is not sufficient for the present application to be successful.
[57] I accordingly decline to make the Order sought by Austin Health. The Interim Order [PR527734] issued on 10 August 2012 accordingly ceases to have effect from the date of this decision.
COMMISSIONER
Appearances:
Mr S. Wood - of Counsel, for Austin Health
Dr R. Kelly - of Health Services Union of Australia
Hearing details:
2012
Melbourne:
8 August
10 August
1 PR527734
2 [2010] FWAFB 1014
3 Ibid [8]
4 [2011] FWAFB 8165
5 Ibid [51]
6 Ibid [55] - [57]
7 Ibid [12]
8 Ibid [49]
9 [2011] FWA 5902
10 Ibid [46]
11 [2009] FWA 44
12 [2011] FWA 5902, paragraph [17]
13 Dominic Au-Yeung witness statement at paragraph 2
14 Ibid, paragraphs 10 - 11
15 Ibid, paragraph 12
16 Ibid, paragraph 15
17 Ibid, paragraph 17(a) - (b)
18 Ibid, paragraphs 20 - 21
19 Ibid paragraphs 24 (a) - (f)
20 Ibid paragraph 36(a) - (c)
21 Ibid paragraphs 37 - 38
22 Witness statement of Professor Chris Hamilton at paragraph 18 and 20
23 Ibid paragraphs 26 - 27
24 Ibid paragraphs 36 - 37
25 Witness statement of Nikki Shelton at paragraph 13
26 Ibid paragraph 14
27 Ibid paragraph 16
28 Witness statement of Paul Elliott, Attachment PE7
29 Ibid paragraphs 24 - 26
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