Australian Nursing and Midwifery Federation

[2021] FWC 888

[2021] FWC 888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
(B2021/85)

DEPUTY PRESIDENT MANSINI MELBOURNE, 19 FEBRUARY 2021

Proposed protected action ballot of employees of Healthscope Operations Pty Ltd T/A Healthscope Limited.

[1] This decision concerns an application by the Communications, Australian Nursing and Midwifery Federation - Tasmanian Branch (ANMF) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Healthscope Operations Pty Ltd t/a Healthscope Limited (Employer).

[2] The Employer does not oppose the application but asked the Commission to specify a longer period of notice of industrial action, pursuant to s.443(5).

[3] The ANMF’s application was allocated to my chambers on 18 February 2021, following correspondence between the parties and the Commission.

[4] At a telephone mention on 18 February 2021, the ANMF stated that it would not oppose the exercise of the Commission’s power under s.443(5) to extend the minimum notice requirement from 3 to 5 working days, but only in relation to forms of industrial action involving a complete stoppage of work. The Employer was directed to file any evidence on which it sought to rely in support of its application for an extension of the minimum statutory notice period by 11am on 19 February 2021.

[5] On 19 February 2021, the Employer filed a statutory declaration of a Ms Kathryn Berry (General Manager of Hobart Private Hospital) of the Employer. Also on 19 February 2021, the parties were afforded an opportunity to make submissions about the form of an amended draft order. The parties confirmed their acceptance of the form of the amended draft order as consistent with the position arrived at during the mention. Neither party sought to make further submissions or respond to the evidence filed.

[6] In all of the circumstances I consider it appropriate to determine this matter on the papers and do so as follows.

The application for a protected action ballot order

[7] I have considered the ANMF’s application in this matter and the declaration of Ms Emily Shepherd, Branch Secretary, which sets out the steps taken by the ANMF to try to reach agreement with the Employer. I am satisfied, and it is not in dispute, that there is a notification time in relation to the proposed agreement, that the applicant union has been, and is, genuinely trying to reach agreement with the Employer, and that the other requirements for the making of a protected action ballot order have been met. As I am satisfied of these matters, I am required by s.443(1) to make a protected action ballot order.

Period for notifying industrial action

[8] The Employer seeks that any protected action ballot order made by the Commission specifies a longer minimum period of notice of industrial action for any forms of industrial action involving a work stoppage, pursuant to s.443(5). It seeks that the extended notice period be 5 (rather than 3) working days and contends that there are “exceptional circumstances” justifying this.

[9] Section 443(5) states that “if the Commission is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days”.

[10] The discretion afforded to the Commission to specify a period of notice in excess of 3 working days is qualified by the requirement that I be satisfied that there are exceptional circumstances justifying a longer period of notice. The Commission must have a sound basis for its satisfaction; generalised predictions as to the consequences of industrial action are not sufficient. I take note of and adopt the approach of the Full Bench in National Tertiary Education Union v Charles Darwin University. 1

[11] The evidence of Ms Berry is that the industry is experiencing a severe labour shortage in Tasmania and, combined with the restrictions of movement across Australia given border closures due to the COVID-19 pandemic, a stoppage of work by its nurses would mean staffing contingencies were not available on short notice and would place its patients at risk. Ms Berry declared that, if its nurses are not able to be replaced at short notice, the Employer would be forced to cancel patient surgeries and close wards including the emergency department. In addition to the health risks to its patients, Ms Berry gave evidence that many patients in Tasmania would incur financial cost from a cancelled surgery on short notice given the travel requirements across the State.

[12] The Commission was informed by the Employer, and the ANMF did not oppose the submission, that the nurses covered by this application are mostly ANMF members and that therefore a high participation rate in protected industrial action could reasonably be expected.

[13] I accept the evidence of Ms Berry, which was sufficiently detailed and balanced. She did not assert that a longer period of 7 working days was required, nor did she assert that a longer notice period of 5 working days was required in relation to all proposed forms of action.

[14] It is acknowledged that the consequences of protected industrial action are meant to be serious and intended place pressure on an employer in relation to the claims that are being advanced in bargaining. Causing significant difficulty and disruption is not of itself a reason to conclude that there are exceptional circumstances. However, such matters may affect the consideration of whether exceptional circumstances exist. In the present case, the Employer has demonstrated that it is difficult for it to source alternative labour, because the company’s access to labour is largely confined to its own workforce. There are significant restrictions on its ability to implement potential contingency arrangements. Industrial action involving a complete stoppage of work may affect patient welfare including in emergency situations. I am satisfied, based on the evidence, which has not been contradicted, that there are exceptional circumstances in the present case in relation to those forms of action involving complete stoppages of work.

[15] Whilst it will be a rare case where it is possible to identify the precise number of days by which the notice period should be extended, in the present case I have had regard to the views of the parties and consider it reasonable on the evidence of Ms Berry that 5 working days’ notice will be needed to make appropriate arrangements in the event of the forms of industrial action involving a complete stoppage taking place. I consider that these exceptional circumstances of a complete stoppage in the present case justify a longer notice period and that the notice period for those forms of action should be 5 working days.

[16] For completeness, I am of the view that the power in s.443(5) can be exercised in relation to any one or more of the particular types of industrial action contemplated in the order. Division 8 of Part 3-3 plainly contemplates the possibility of a multiplicity of questions appearing on protected action ballots (see s.443(3)(d)). The framework contemplates that employees might authorise some forms of action but not others. It is consistent with this framework that the power of the Commission to prescribe a longer notice period under s.443(5) is referrable to particular types of action. 2

[17] Based on the information before me, I am satisfied that there are exceptional circumstances that justify the period of written notice referred to in s.414(2) being extended to 5 working days for the forms of proposed action involving complete stoppages of work, and that it is appropriate that I exercise my discretion to extend the notice period accordingly.

[18] I will make an order that a period of 5 working days’ written notice be given in relation to the industrial action proposed in questions 5(h) and 5(i) of the ANMF’s draft ballot order.

[19] An order has been separately issued in PR727113.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727112>

 1   [2018] FWCFB 4011 at [21]-[25].

 2   Community and Public Sector Union v G4S Custodial Services Pty Ltd [2020] FWC 1106.