Australian Nursing and Midwifery Federation v Geo Group Australia Pty Ltd T/A Fulham Correctional Centre

[2018] FWC 7659

[2018] FWC 7659

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
GEO Group Australia Pty Ltd T/A Fulham Correctional Centre
(B2018/1176)

COMMISSIONER WILSON MELBOURNE, 19 DECEMBER 2018

Proposed protected action ballot of employees of Fulham Correctional Centre.

[1] On 17 December 2018, I granted an order in this matter, and in doing so, undertook to provide my reasons for decision at the earliest opportunity.

[2] This matter concerns an application by the Australian Nursing and Midwifery Federation (ANMF) for a protected action ballot order in relation to certain employees of GEO Group Australia Pty Ltd T/A Fulham Correctional Centre (Fulham Correctional Centre) whose employment is presently covered by the Fulham Correctional Centre Nurses Enterprise Agreement 2013 1, (the Agreement), the nominal expiry date of which is 7 February 2018. The application is made pursuant to Part 3 – 3 of the Fair Work Act 2009 (the Act) and is opposed by Fulham Correctional Centre.

[3] The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[4] The ANMF sought to ballot all employees of the Fulham Correctional Centre who will be covered by the proposed enterprise agreement and for whom the ANMF is their bargaining representative. The material filed in this application by the ANMF asserts that it is a bargaining representative for the purposes of s.176(1) of the Act.

[5] The ANMF proposed one rolled-up question to which respondent employees will need to answer with a ‘yes’ or ‘no’ response which is prefaced with a preamble. The question and preamble to be put are as follows (as amended by the ANMF prior to the hearing):

‘By answering Yes or No, do you, for the purpose of advancing claims in the negotiations for an enterprise agreement between Australian Nursing and Midwifery Federation and GEO Group Australia Pty Ltd T/A Fulham Correctional Centre agree to authorize all of the following forms of industrial action:

1. Refusing to comply with the employer's dress code standards or dress code policies, by wearing ANMF campaign shirts, badges/stickers during all working hours, and stopping work for up to 15 minutes duration to explain to clients and other members of staff the reasons for wearing the campaign related materials.

2. By stopping work for up to 30 minutes duration and distributing ANMF campaign materials such as leaflets, banners, posters, badges/stickers to clients, other staff members, the public, and media and to explain the reasons for the campaign related materials. The stoppages will occur on a daily basis during normal working hours.

3. By refusing to complete data entry for manual spreadsheets.

4. By refusing to complete night duty check lists however described.

5. By refusing to undertake any clerical duties associated with the scanning of paperwork.

6. [removed prior to the hearing]

7. By attending ANMF stop work meetings of no less than one hour and up to 8 hours after the commencement of normal rostered duty.

8. By refusing to undertake any admission intake surveys.

9. By refusing to collect statistics from:

• pathology collection,

• sharps registers,

• end of month statistics,

• J -Care Electronic Health Records’

[6] Fulham Correctional Centre opposed the application on the grounds that a number of the proposed questions are not stated with sufficient clarity to allow employees to make an informed choice, namely sub-questions one, two and seven, as numbered in the original application.

[7] The application was heard before me on Monday, 17 December 2018.

[8] In considering this application I must apply s.443 of the Act which provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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 paragraph 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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[9] The Fulham Correctional Centre argued that sub-questions one and two have several deficiencies.

[10] In relation to sub-question one it was argued that the sub-question lacks clarity or is confusing, or has other defects;

•  The sub-question includes multiple actions since it deals both with a refusal to adhere to clothing policies, as well as the stopping of work. The sub-question further lacks clarity since it is unclear whether there is to be a single stoppage or multiple stoppages in the course of a shift;

•  The use of the word “client” in the sub-question is imprecise since the relevant nurses do not have clients, instead they treat prisoners;

•  The first element of the sub-question, which deals with the wearing of clothing which is contrary to the dress-code does not constitute industrial action; and

•  Further, it is argued that anything which causes a nurse to involve prisoners in uncontrolled discussions about industrial action would be irresponsible.

[11] In relation to sub-question two, it is also argued that the compounded question may be confusing, as well as that the question lacks precision since it is unclear how many stoppages may be envisaged in the course of a shift. The Respondent also argues that the reference to employment of campaign material may create a hazard and that the material may not be allowed into the prison. The argument in relation to the number of stoppages envisaged by the sub-question stems from an inconsistent use of a plural in the second sentence; “2. By stopping work for up to 30 minutes duration … The stoppages will occur on a daily basis during normal working hours”.

[12] Fulham Correctional Centre argued that sub-question seven may be an invitation to convene a strike, rather than to hold a meeting, since potentially the meetings may be scheduled for up to eight hours, with it being unlikely that a stop work meeting would go for eight hours. This, to Fulham, indicated that the event is not really intended to be a meeting, but to be a strike.

[13] The ANMF rejected the Respondent’s characterisation of its questions arguing that there was no lack of clarity to its questions; that the questions were permissible; that the use of the word “client” instead of “prisoner” was understood by the nurses in question and that such wording had been used in a ballot of the same group of employees on an earlier occasion; and that matters of the safety consequences associated with speaking directly with prisoners could be dealt with after a ballot had passed and the employer notified of a precise form of industrial action.

CONSIDERATION

[14] An application for a protected action ballot order ultimately seeks to “determine whether employees wish to engage in particular protected industrial action” for the agreement they are endeavouring to bargain for. 2 Industrial action is protected industrial action if it has been authorised by a protected action ballot order.

[15] In considering Fulham Correctional Centre’s submissions on its objections, it is relevant to take into account the definition of “industrial action”, set out within s.19 of the Act in the following terms:

“19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, 3 the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[16] I consider first the matter of the compounded questions and whether a reference to the wearing of campaign clothing is permissible.

[17] The question of whether or not particular action amounts to “industrial action” was most recently considered by the Full Bench in the matter of Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union. 4 That decision overturned earlier authority set by a Full Bench majority, also involving Mornington Peninsula Shire Council (Australian Nursing Federation v Mornington Peninsula Shire Council)5 and held after a detailed analysis of earlier authority, that the correct approach to the subject of whether or not a particular question element amounts to industrial action is to require an examination of the form of the proposed action and its connection with the definition of industrial action. In respect of disputed questions framed as “4. Indefinite or periodic industrial action in the form of performing work while wearing campaign material and/or badges” and “8. Indefinite or periodic industrial action in the form of wearing casual clothes”, the Full Bench in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union held:

“[38] We do not consider that any of the action described in 4 or 8 describes the nature of any industrial action. In our view is not sufficient to suggest that the corollary of performing work while wearing campaign material and badges, or while wearing casual clothes, or while not wearing a uniform or a name badge, is that there is a refusal to perform work in circumstances other than those described. We consider that the action for which approval is sought through a protected action ballot must itself describe the nature of the industrial action for which approval is sought in the question. That there will be a refusal to perform work other than in circumstances as described must in our view be expressed and not merely inferred. Indeed, the action described in 6 in the form amended, to which no objection is taken does so. It describes the action as a ban on the performance of work in clothes to which campaign materials is not attached.

[39] The action described in 4 is an “indefinite or periodic industrial action in the form of performing work while wearing campaign material and/or badges” (our emphasis). The action as described results in the performance of work and does not fall within any of the defined action found in the enumerated subparagraphs of s.19 of the FW Act. The action described in 8 of the question suffers from the same flaw in that it describes the industrial action to be in the form of wearing casual clothes. Neither of the action in 4 or 8 of the question describes any refusal to perform work or a delay in the performance of work, or the adoption of a practice in relation to work which will have that result, or a ban or limitation or restriction on the performance of work.” (original emphasis)

[18] As such, whilst a question which purports to establish “industrial action in the form of performing work while wearing campaign material and/or badges” is impermissible because it is not “industrial action” within the meaning of s.19 of the Act, a question which proposes industrial action in the form of interrupting or stopping work in order to take a secondary action is permissible:

“[25] The action described in 2 is:

“Interrupting work periodically, over an indefinite period or for specified periods in order to type or re-type, for the purpose of including in each email to be sent, the following statement: “I am taking protected industrial action because staff deserve job security. Email your objection to the CEO Carl Cowie, [email protected]”.”

[26] While the action described in 5 is:

“Indefinite or periodic industrial action in the form of interrupting or stopping work in order to attach campaign material and/or badges on clothes worn at work.”

[27] We consider that the action for which authorisation is sought in 2 is the action of “interrupting work periodically, over an indefinite period or for specified periods”. That which follows merely describes conduct in which an employee will engage whilst interrupting his or her work. Viewed in this way, the action is quintessentially industrial action as defined. The activity in which an employee will engage during the interruption of work sets the period or duration of the industrial action, being the interruption to the work. That is, the interruption will occur for the period of time that it takes an employee to include the statement in a relevant email or emails that forms part of the work the employee normally performs before sending it to them. The activity also has the effect of delineating the nature of the interruption to work that will be authorised (for the purpose of typing or retyping the statement) from an interruption to work for another purpose that will not be authorised.” 6 

[19] In considering a question couched in these terms, “5. Indefinite or periodic industrial action in the form of interrupting or stopping work in order to attach campaign material and/or badges on clothes worn at work”, the Full Bench affirmed that such a question was permissible for reason of the conjunctive nature of the activity:

“[29] As to the action described in 5, we also consider the action for which authorisation is sought is the action of “interrupting or stopping work”. The described activity which is to follow during the interruption of stopping of work, namely, attaching campaign material and/or badges on clothes worn at work, merely describes action in which the employees will engage whilst interrupting their work. Apart from describing that which the employees will be doing whilst interrupting or stopping work, the activity described serves to set the period or duration of the industrial action in which the employees proposed to engage. That is, the interrupting of or stopping work will occur for the period of time that it takes an employee to affix the material described to the employees clothes worn at work. As earlier noted, the described activity also has a delineating effect on the interrupting or stopping work that will be authorised and that which will not.”

[20] While the wording of the ANMF’s sub-question one is perhaps clumsy, it is precise enough for it to be permissible and not to be found to lack clarity. The question contemplates both that there will be a refusal to comply with policies AND that there will be a stopping of work. That part of the question is plainly permissible. The question’s use of the word “clients” is also not incapable of being understood by nurses; while it may be more correct to refer to those they nurse as “prisoners” such does not mean that those voting on the question do not know the target of the reference.

[21] Notwithstanding that the Full Bench in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union took a different approach to earlier authority in respect of the question of whether the wearing of campaign material in the instant case amounted to industrial action, it did not disturb the proposition set out within John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 7 that in most cases the drafting of questions in a protected action ballot order will be a matter for the applicant and that the central requirement of s.437 of the Act is that the questions should describe the industrial action in such a way that employees are capable of responding to them:

“[19] Moving now to the construction of s 437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s 414 was not authorised by the ballot and that the action is not protected for the purposes of s 409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.” 8 

[22] The contentions in relation to sub-question two, beyond the matters already dealt with, go firstly to whether campaign materials may be allowed into the prison then secondly to the employment of the word “stoppages” in the question, when the sentence first uses the word “stopping”, implying the singular. In relation to the first matter, Fulham Correctional Centre argues that the campaign materials simply would not be allowed in and if they were, they may hinder good discipline. On the second matter, it is argued that the inconsistent use of the plural causes the question to arise about how many stoppages may be envisaged.

[23] In context, I am satisfied that sub-question two is capable of being responded to. Whether campaign material is permitted in the prison is a matter for the Respondent after the ballot has passed and the precise industrial action notified. The construction of the first sentence in the sub-question does not limit, “stopping work” to a single occasion on each shift, and employment of the plural in the second sentence does not lead to confusion. It is reasonably clear that the question contemplates there to be one or more stoppages each shift.

[24] In relation to what was originally sub-question seven, there is nothing to presume that stop work meetings cannot continue for up to eight hours. Filibusters being what they can be, it is possible that a stop work meeting might be very long, and such is capable of being industrial action.

[25] After consideration of all of the matters put to the Commission about the proposed sub-questions, I was satisfied that all parts of the order sought by the ANMF were within the power of the Commission to order and that it was otherwise appropriate to make the orders sought by the Applicant.

[26] Having determined these matters, and being satisfied that the requirements of s.443(1)(a) and (b) of the Act have been complied with, I was required to make a protected action ballot order, as sought by the ANMF. An order in the form sought by the Applicants was issued by the Commission on 17 December 2018.

COMMISSIONER

Appearances:

Mr B. Megennis and Mr Q. MsGuinness for the ANMF.

Mr R. Casimir for the Respondent.

Hearing details:

2018.

Melbourne;

17 December 2018.

Printed by authority of the Commonwealth Government Printer

<PR703240>

 1   AE406676.

 2   Fair Work Act 2009 (Cth), s.437(1).

 3   PR946290.

 4   [2017] FWCFB 4740.

 5 (2010) 194 IR 239, [2011] FWAFB 4809.

 6   [2017] FWCFB 4740.

 7   [2010] FWAFB 526.

 8   Ibid.