Australian Municipal, Administrative, Clerical and Services Union v The Uniting Church in Australia Property Trust (Q.) T/A Blue Care
[2022] FWC 1856
•18 JULY 2022
| [2022] FWC 1856 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Municipal, Administrative, Clerical and Services Union
v
The Uniting Church In Australia Property Trust (Q.) T/A Blue Care
(B2022/679)
| COMMISSIONER SIMPSON | BRISBANE, 18 JULY 2022 |
Proposed protected action ballot of employees of The Uniting Church in Australia Property Trust (Q.)
This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (ASU). The ASU seeks a protected action ballot order in relation to certain employees of The Uniting Church in Australia Property Trust (Q.) Trading as Blue Care (Blue Care).
The ASU filed the application on 13 July 2022, accompanied by a Form F34B Statutory Declaration in support of the application signed by Mr Michael Thomas, Assistant Branch Secretary employed by the ASU.
On the same day email correspondence was sent from the chambers of Vice President Catanzariti asking Blue Care to please indicate whether it objected or consented to the application by 12pm (AEST) Thursday 14 July 2022. The parties were advised that if the Respondent objected to the application, the response was to contain details of the basis of the objection and any material upon which was relied.
At 10:38am this same day Minter Ellison filed a Form F53 on behalf of Blue Care and stated that urgent internal inquiries regarding the Applicant's application for a protected action ballot order were being made. The Respondent sought some additional time to confirm its position with respect to the application (and prepare any materials in response on which it will rely).
At 12:24pm the Respondent Representative sent an email which indicated that the Respondent objected to the protected action ballot order application and that they would file and serve details of the basis of the objection and material upon which is relied as soon as possible.
At 2:26pm the Respondent filed and served a Form F1 Application including Annexure 1, and a witness statement of Ms Maria McLaughlin-Rolfe, dated 14 July 2022. The application was made pursuant to s.443(5) of the Act to extend the period of written notice required to be given under s.414(2)(a).
On the day of the Proceeding, at 8:46am, the Applicant filed a witness statement from Mr Dale West, Member of the Applicant and Employee of the Respondent.
During the Proceeding, the parties by consent engaged in private conference discussion. In the course of the conference the parties resolved the issues in dispute in relation to the wording of the questions to be put to ballot but remained apart on whether the period of written notice of action be extended. I now turn to that issue.
Notice Period
The Respondent pursuant to section 443(5) of the Act has sought that the Commission extend the period of written notice required to be given under section 414(2)(a) to 7 days.
At the conclusion of the Conference on 15 July 2022 the parties consented to the issue of whether the written notice requirement be extended being dealt with on the papers. The parties were provided an opportunity to put any further material on the issue in writing. At 3:27pm that same day, the Applicant provided written submissions opposing any extension to the notice required and also provided a statement from Ms Nicole Cox in relation to the issue.
At 5.50pm the Respondent provided a further written submission in support of extending the notice period and provided a further statement from Ms McLaughlin-Rolfe. Both parties confirmed they did not oppose the statements being considered by the Commission without the requirement for cross examination.
The Applicant submitted that the issues of safety, in themselves, were not sufficient to justify exceptional circumstances and that other mechanisms within the Act provide options to the parties where there are risks to the health and safety of the community.
The Applicant further submitted that the support provided by the employees covered by the ballot is not ‘time-critical’ and that in the event of a genuine emergency, then clients of the Respondent would access the health system through the Queensland Ambulance Service or their personal General Practitioner.
The Applicant submitted that there was nothing in the nature of the work and the action proposed that justified an extension of time.
The Applicant referred to a decision of a Full Bench of the Commission in National Tertiary Education Industry Union v Charles Darwin University[1] (NTEU) where the Full Bench said the following in relation to s 443(5):
“[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days’ written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be “exceptional circumstances” in relation to the proposed industrial action the subject of the order justifying a longer period.”
The Applicant submitted that in relation to the meaning of the expression “exceptional circumstances”, the Full Bench in NTEU quoted and applied the decision of the Australian Industrial Relations Commission in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Services Corporation[2] relating to the equivalent provision in the Workplace Relations Act 1996 as follows:
“[10] ... In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
The Applicant submitted that the Full Bench in NTEU then set out a three-step decision-making process required in order to determine whether there should be an extension to the notice period pursuant to s.443(5) of the Act as follows:
“[23] The determination of whether the circumstances in a particular case are ‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of the Commission’s discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase “exceptional circumstances” carries its ordinary meaning.
[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).”
The Applicant also referred to a decision of a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd and Others[3] (DP World) where the Full Bench said as follows in relation to the extent that the adverse consequences of industrial action affecting third parties can be considered a basis to extend the period of notice:
“[17] If the Decision [under appeal] was to be read as finding exceptional circumstances on that basis alone, we would accept that it would be in error. In our view, it is difficult to contemplate a situation where the taking of industrial action by employees in the form of a stoppage of work would not involve some impact, with cost implications, on third parties. Detrimental effects on suppliers, customers or subcontractors of the employer are an ordinary incident of the legitimate ‘duress’ or ‘coercive influence’ of protected industrial action. It has long been recognised that part of the purpose of the standard notice requirement for protected industrial action is to allow the employer to attempt to ameliorate the consequences for such third parties.”
The Applicant also referred to the finding of the Full Bench in DP World in the following paragraph as follows:
“[18] Consequently on no basis could it be said that the simple fact that protected industrial action has effects upon third parties requiring ameliorative steps to be taken is “out of the ordinary course”, “special”, “rare” or “uncommon” such as to constitute the requisite exceptional circumstances. Were it otherwise, extensions to the standard notice period under s 443(5) would be granted as a matter of course.”
The Applicant also referred to the following passage at paragraph [20] of the decision of the Full Bench in DP World:
“...There can be no doubt that one of the factors to be weighed by the Commission in determining whether exceptional circumstances justify an extension of the written notice period is the impact of the industrial action proposed to be put to a ballot upon the interests of third parties. Plainly, the magnitude of the impact and its ramifications will be a matter of degree in each case, depending on a range of factors, inter alia, the nature, extent of, and duration of the proposed industrial action. This is a matter which may be taken into account together with a range of other relevant factors including but not limited to the direct effect upon the employer, the effect of an extension upon the bargaining power of employees, the range of mitigative strategies which an employer may adopt within the standard notice period, and the capacity of the employer to take protected response action.”
The Applicant also relies on a decision of the Full Court of the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99 where the Full Court said the following in relation to the power under s 443(5):
“As a general matter it is apparent that the formation of the discretionary judgment called for by s. 445(3) is conditioned on the FWC forming a discretionary evaluative judgement about whether, having regard to all of the circumstances, there exists some characteristic of the foreshadowed proposed industrial action, in the whole of the context in which it is to occur, that justifies allowing a longer period of written notice.”
In response the Respondent’s stated grounds in support of the existence of exceptional circumstances the Applicant submits that:
(a)Issues of safety, in themselves, are not sufficient to justify exceptional circumstances and there are other mechanisms within the Act that provide options to parties where there are risks to health and safety of the community;
(b)While this is the case, it is by no means exceptional, there are many lines of work that deal with vulnerable and at risk clients;
(c)Concerns raised by the Respondent about the ambiguity of ballot questions have been addressed through the consent amendments to the proposed Order;
(d)Issues in relation to the nature of work of the employees are answered by the evidence of Ms Nicole Cox which it is submitted demonstrates that the work in question is a community service undertaken by allied health workers where people discharged from hospital are provided general support for people in the home. It is across a range of disciplines including:
a. occupational therapy;
b. physiotherapy;
c. podiatry;
d. dietetics;
e. social worker;
f. psychology;
g. speech therapy;
h. music therapy; and
i. exercise physiology.
The Applicant submits that while this work is important, it is not associated with the sorts of time pressures that accompany acute or emergency care, and the support provided is not time-critical and appointments are regularly rescheduled with no impact on the client. The Applicant submits that in the event of a genuine emergency clients would access the Health system through the Queensland Ambulance Service or their General Practitioner.
The Applicant submits that this is illustrated by the fact that Blue Care clients may often go many weeks or even months before any support is provided.
The Applicant submits that there is nothing in the nature of the work and the action proposed that justifies and extension of time. Even if that was not the case, it would not justify an extended notice period for all different actions listed in the proposed order. The Applicant submitted in the alternative, it is simply not the case that all of the action proposed would be ameliorated by an extension in time.
The Applicant submits that the justifications for the application are so broad as to raise concerns that the true motivation is to negate any inconvenience from the action to the Respondent, not the third parties and the application for extension should be rejected.
The Respondent submits that the phrase 'exceptional circumstances' has its ordinary meaning that there are circumstances that exist that are 'out of the ordinary course, or unusual, or special or uncommon', though not necessarily 'unique, or unprecedented or very rare', which justify the exercise of the Commission's discretion. Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.
The Respondent referred to a decision of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [4] where the Vice President stated:
“Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive, action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.”
The Respondent also referred to a decision of the Commission in Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd[2016] FWC 1275 where the Commission considered the impacts of the proposed industrial action on third parties including clients and the broader public. Deputy President Kovacic in that matter also considered submissions from
Linfox Armaguard Pty Ltd regarding the need to put in plan contingency arrangements, the need, to comply with its obligations under relevant Codes of Practice and to mitigate the potential impact on clients and the public.
The Respondent submits an analogous approach can and should be taken here and an extended period of notice be ordered to assist the Respondent, one of the largest providers of home care in Queensland, with services provided in remote areas including Rockhampton, Yeppon, Mackay, and Cairns to put in place contingency arrangements in circumstances where the Respondent’s vulnerable clients rely on Allied Health professionals for their care needs and where the aged care is a highly regulated industry.
In relying on the further statement of Ms McLaughlin-Rolfe, the Respondent submitted that clients often book in their appointments with Allied Health professionals weeks in advance and rely on their appointments. The Respondent submitted that the proposed actions are significant with significant consequences, and could have a number of safety impacts for clients and employees of the Respondent especially if the notice period is not long enough for the Respondent to obtain appropriately qualified replacement staff, including for example:
(i)delay or not returning to the client to check on a medical aid or complete an assessment could result in an aid not being used correctly etc.;
(ii)exercise programs that maintain or improve strength for clients could be compromised resulting in clients increasing falls risks in community;
(iii)delay in physiotherapy treatments can result in the client experiencing pain and reduce their mobility;
(iv)speech therapy delays in care could see clients with swallowing problems compromised;
(v)dieticians delays in prescribing and reviewing dietary needs and requirement could further impact client wellbeing and result in weight loss, deconditioning etc.
The Respondent submits that the consequences of a complete stoppage of work for a protracted period of time or an indefinite ban on types of work would have a significant impact on a difficult and specialised area of client care, such that it poses a threat to the health and safety of vulnerable people.
The Respondent submits that a large number of clients have the potential to be affected by the proposed industrial action, and the employees to be balloted are spread across Queensland in many different geographical regions and its clients could be impacted by this action.
The Respondent submitted that extensive contingency planning would be required in the event of both a partial and complete stoppage of work for any period of time particularly for protracted and indefinite bans on work. The Respondent submitted that there is a workforce shortage in the broader aged care sector, and as the Respondent serves the community in many different geographical regions in Queensland, it would be difficult to obtain appropriately qualified replacement staff, given the critical workforce shortage as well as the specialised services being provided. The impact on clients will be more serious in regions that have higher union density or in more remote regions.
The Respondent submits that employees to be balloted are in a line of work that is subject to a degree of disruption and uncertainty due to the COVID-19 pandemic, and this already places undue pressure on the Respondent in terms of ensuring there are adequate contingency plans and measures in place to address staff shortages, including by way of reduced availability of staff from overseas, the increased competition for domestic staff among other industries with similar needs, such as the disability care industry and other working opportunities for allied health professionals.
The Respondent submits that the extended notice period would provide the Respondent with additional time to take steps to minimise the risk to client safety, to the extent that is possible, and if the extended notice period is not granted, the safety risks highlighted above and in the statements of Maria McLaughlin-Rolfe will be further magnified.
The Respondent submits that these measures are required to ensure that client health and safety are not at risk, and it will not undermine or blunt the effectiveness of the industrial action itself, as even with this additional notice, the proposed industrial action is likely to cause significant disruption and cost to the Respondent if it occurs.
The Respondent submits that on these bases, the Commission can be satisfied that there are exceptional circumstances that justify the written period of notice to be seven working days for any industrial action (or in the alternative, a period above three working days as is determined by the Commission to be appropriate).
Conclusion
Having considered all of the evidence filed, I am satisfied that the requirements of ss.443(1)(a) and (b) have been met and that, accordingly, an order must be made. Order PR743823 will be issued with this decision.
I have weighed the competing submissions and statements filed by the parties as to whether exceptional circumstances exist in the particular facts of this case, and if exceptional circumstances do exist, what extension is appropriate.
I am satisfied that in weighing the interests of the Applicant and its members, and the interests of the Respondent and third parties, the nature of the industrial action that will be put to ballot, if it were to take place and interfere with the provision of the Allied Health Care services provided by the relevant employees to the frail aged clients of the Respondent in their homes across such a large and diverse area of Queensland, would constitute exceptional circumstances as contemplated by s.443(5).
I am satisfied the likely impact on the industrial action does justify the exercise of my discretion to order an extension however I have also taken into account the material provided by the Applicant that supports a conclusion that the circumstances are not the same as would be the case in acute or emergency care for example. On that basis, I have determined that an extension of a further one day is appropriate in this case, requiring that the period of written notice referred to in s.414(2)(a) of the Act be extended to 4 working days. The protected action ballot order will specify this period.
COMMISSIONER
[1] [2018] FWCFB 4011.
[2] [2007] AIRC 848.
[3] [2019] FWCFB 1150.
[4] [2007] AIRC 848.
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