Australian Nursing and Midwifery Federation v HammondCare

[2016] FWC 6953

[2016] FWC 6953

FAIR WORK COMMISSION

DECISION

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

Australian Nursing and Midwifery Federation
v
HammondCare
(B2016/995)

And

Health Services Union
v
HammondCare
(B2016/996)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 28 SEPTEMBER 2016

Proposed protected action ballot of employees of HammondCare—form of question—permissibility of composite question seeking a single yes/no answer to whether multiple forms of industrial action are approved—extension of notice period.

Background

[1] This decision concerns separate applications (the Applications) by the Australian Nursing and Midwifery Federation (ANMF) Health Services Union No. 3 Branch (HSU) (the Applicants) under s.437 of the Fair Work Act 2009 (the Act) for Protected Action Ballot Order’s (Order or Orders).

[2] Both applications (B2016/995 and B2016/996) seek to ballot those members of the ANMF and the HSU employed by HammondCare in relation to negotiations for an enterprise agreement involving nurses, carers and specialized dementia carers.

[3] The Applications were heard before me on 16 September 2016 and my decision was reserved at the conclusion of those proceedings.

[4] The ANMF filed written submissions and also made oral submissions during the hearing. Ms Siobhan Kelly of counsel appeared for the ANMF.

[5] The HSU filed written submissions and also made brief oral submissions.

[6] Mr Dan Trindade and Mr Matt Condello, legal practitioners appeared for HammondCare.

[7] Evidence was given on behalf of the ANMF by Mr Simon Olden, Industrial Relations Organiser and Ms Megan Reeve, Industrial Officer. For HammondCare, evidence was given by Ms Kylie Ann Thomas, Operations Manager and Director of Nursing.

Grounds of Objection

[8] HammondCare opposed the Applications. The Applications were the subject of a joint conference on 12 September 2016. There was no substantive opposition to an Order being made. Rather, HammondCare objected to the form of the question proposed by the Applicants and argued there are exceptional circumstances justifying a longer notice period in respect of some of the types of proposed industrial action.

[9] HammondCare submit the question to be put to the employees to be balloted involves a composite yes/no question in relation to various forms of industrial action and that the question should allow for the option of a yes or no response to each form of industrial action.

[10] HammondCare seek that in the event Orders are made, the period of notice pursuant to s.443(5) of the Act be extended to seven (7) working days because of the existence of “exceptional circumstances” for the following forms of proposed industrial action:

● refusal to attend work for a rostered shift or shifts (non-attendance action); and
● individual or consecutive stop work meetings of up to 2 hours’ duration each (stop work action)

[11] The Applicants object to an extension of the period of notice.

Statutory Context

[12] The Act relevantly provides as follows in relation to an application for an Order:

“436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or
(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and
(b) 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 applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

438 Restriction on when application may be made

(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).

(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.

439 Joint applications

Without limiting section 609, the procedural rules may provide for the following:

(a) how a provision of this Act that applies in relation to an applicant for a protected action ballot order is to apply in relation to joint applicants for such an order;
(b) the joinder, with the consent of each existing applicant, of one or more bargaining representatives to an application for a protected action ballot order;
(c) the withdrawal of one or more applicants from a joint application for a protected action ballot order.

440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:

(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.

441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.

442 Dealing with multiple applications together

The FWC may deal with 2 or more applications for a protected action ballot order at the same time if:

(a) the applications relate to industrial action by:
(i) employees of the same employer; or
(ii) employees at the same workplace; and
(b) the FWC is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.

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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.”

Threshold Requirements

[13] It is not in contention that, and I am satisfied, pursuant to s.437(1), the Applicants are bargaining representatives and are entitled to make the applications being considered in this matter.

[14] I am satisfied the Applicants have made a proper application as required by s.437 of the Act and have met the documentary and notice requirements for the application.

[15] I am satisfied the Applicants are not prevented from bringing the applications by virtue of s.438 of the Act.

[16] In 2015 the ANMF made an application for a scope order which was supported and endorsed by the HSU. On 5 February 2016, in accordance with s.238 of the Act, the Commission issued a scope order that any proposed enterprise agreement cover HammondCare and those persons employed by HammondCare who perform work in the State of Victoria. 1

[17] Section 437(3)(a) of the Act requires an Order to specify the group or groups of employees who are to be balloted. I am satisfied the employees to be balloted as identified in the applications have met this criterion and complies with the scope order.

[18] In August 2016 HammondCare employees voted and rejected a proposed enterprise agreement. It is not in contention that HammondCare and the Applicants have genuinely been trying to reach an agreement for an enterprise agreement to provide terms and conditions of employment for registered nurses, carers and specialized dementia carers employed by HammondCare in Victoria, as required by s.443(5) of the Act.

Submissions on the form of the Question

[19] HammondCare opposes the wording of the ballot questions proposed by the Applicants in its current form. The objections raised by HammondCare arise from the nature of the question being a composite question asking employees to vote for different forms of industrial action with a single yes/no vote, rather than individual yes/no questions for each particular form of industrial action.

[20] The ballot questions in the ANMF application are as follows:

“By answering “Yes” or “No”, do you, for the purpose of advancing claims in the negotiation of an enterprise agreement between the Australian Nursing and Midwifery Federation and HammondCare agree to authorize all of the following types of industrial action:

● Industrial action in the form of refusal to attend work for a rostered shift or shifts?
● Industrial action in the form of individual or consecutive stop work meetings each of up to 2 hours duration?
● Industrial action in the form of a ban on the completion of any paperwork or electronic forms related to the Aged Care Funding Instrument (ACFI), with no retrospective completion of such paperwork for the duration of the ban?
● Industrial action in the form of finishing and commencing duty at the rostered times unless overtime is approved, in writing, in advance?
● Industrial action in the form of wearing campaign related materials, such as t-shirts, badges and stickers?
● Industrial action in the form of distributing and displaying campaign related information for the purpose of engaging with clients, relatives, members of the public and media about the proposed campaign?
● Industrial action in the form of a ban on the admission of new residents?

[21] The HSU application seeks an Order in identical terms to that of the ANMF.

[22] HammondCare argue the terms of the Orders proposed by the Applicants in their current form of a composite question do not provide a democratic process for employees to vote for or against particular forms of industrial action. They also argue by the use of a composite question it cannot be properly determined whether employees wish to engage in a particular type of industrial action.

[23] They submit there are a number of employees who may not want to risk resident care by partaking in Stop Work Action or Non-Attendance Action, however would be content to take part in other forms of action that they may consider do not compromise resident care.

[24] They also submit in forcing employees to make an all-or-nothing decision there is likely to be no detriment to employees wishing to vote in favour of all actions, however this would result in considerable detriment to employees who would like to vote in favour of some actions and against other.

[25] HammondCare do not contest that the Applicants are entitled to frame the types of industrial action to be put in the ballot as they see fit. They do however argue that the Object of the relevant Division of the Act are clear in that they are to provide for a democratic process for employees to vote for or against particular forms of industrial action and that allowing employees to vote separately for each particular type of industrial action would achieve those objectives.

[26] In support of their argument HammondCare refer to s.436 of the Act which sets out the Objects of Division 8 of Part 3-3 in the following terms:

“The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.” (emphasis added)

[27] HammondCare also refer to the decisions of Vice President Watson in National Union of Works v FreshExchange Pty Ltd 2 (FreshExchange) and Deputy President Bartel in Australian Municipal, Administrative, Clerical and Services Union v Pelican Point Power Limited3(Pelican Point) in which both refused to make Orders rejecting a composite question approach where a single Yes/No vote is required for multiple types of industrial action.

[28] The Applicants submit since the full bench decision of John Holland Pty Ltd v AMWU 4 (John Holland) and the decision of Commissioner Gregory in the Health Services Union v Victorian Institute of Forensic Mental Health,5 it has been determined that a single, compendious question is permissible. The requirement is that the question to be put to employees to be balloted must be written in a way where there is sufficient clarity that permits employees to respond.

[29] HammondCare submit the decision in John Holland can clearly be distinguished from the current matter and suggest Commissioner Gregory’s reliance on John Holland in Health Services Union v Victorian Institute of Forensic and Mental Health, was incorrectly viewed. They argue John Holland was not a case where a number of particular types of industrial action were rolled into one question. The composite nature of the question in John Holland was only in terms of the duration of the bans on overtime in one sentence. They submit, in his decision, the Commissioner incorrectly rejected the approach in FreshExchange and Pelican Point.

[30] Referring to the decisions of United Firefighters Union v Country Fire Authority, 6 Health Services Union v Clinical Laboratories Pty Ltd,7 John Holland, National Tertiary Educational Union v RMIT University,8 the Applicants argue that it is a matter for the bargaining representatives to determine the kind of industrial action proposed to be taken to the employees to be balloted. The Applicants submit the current ballot question adequately describes the industrial actions proposed with sufficient clarity and in a way that permits employees to respond.

Submissions on Extension of the notice period

[31] In the event that I decide to issue the order, HammondCare sought that the order specify that the notice period required under section 414(2)(b) of the Act for non-attendance action and stop work action of seven (7) working days pursuant to section 443(5) of the Act be granted. The Commission can extend the period of notice if it is satisfied that ‘exceptional circumstances’ exist, justifying such an extension.

[32] To ensure resident care is not compromised, HammondCare submit exemptions are required citing reasons of resident safety and emergency situations. HammondCare submit they are not a typical aged-care operator, they care for high needs elderly residents living with dementia, who require specific and tailored care above what is ordinarily required in aged-care facilities. The residents of HammondCare cannot look after themselves and cannot readily be transferred to other facilities.

[33] HammondCare argue staff could notify 12 consecutive 2 hour stoppages per day requiring them to make alternative arrangements to replace absent staff. The staff employed by HammondCare require training additional to that required by typical aged care facilities as well as buddy shifts.

[34] In support of their argument they rely on the decision of Health Services Union v Victorian Institute of Forensic Mental Health, 9 stating the residents are comparable to patients requiring specialised mental health services in a hospital environment, rather than residents in a typical nursing home.

[35] HammondCare rely on the decision of Commissioner Gooley (as she then was) in Australian Nursing Federation v Victorian Hospitals’ Industrial Association, 10 in support of their submission that relevant forms of industrial action will compromise resident care and for this reason extended notice should be granted.

[36] The Applicants object to any extension of time being granted arguing that the circumstances that are exceptional must be directed to necessary defensive action that cannot be taken within the three-day period. The Applicants rely on David’s Distribution Pty Ltd v National Union of Workers, 11 and Telstra Corporation Limited v CEPU12to support the submission.

Consideration

[37] At the commencement of hearing Ms Reeve’s evidence, Mr Trindade objected to Ms Reeve’s witness statement being tendered into evidence in its current form. Specifically, Mr Trindade objected to paragraphs [8] to [18] of Ms Reeve’s witness statement submitting that much of the content within those paragraphs was hearsay of a kind that would not be admissible in court, pursuant to the Evidence Act.

[38] It was Mr Trindade’s submission that it is the longstanding practice of this Commission and its predecessors that the rules of evidence are not simply thrown aside, they are certainly looked at and followed. Further he submits the probative value of the content within the witness statement of Ms Reeve as being that which someone said, without being able to test the veracity of it through the usual processes, is almost nil.

[39] Ms Kelly argued that the submission of Mr Trindade be rejected because the Commission was not bound by the rules of evidence. Ms Kelly’s submission was that in circumstances where hearsay is sought to be led, the Commission’s role is to balance the interests of the parties and the nature and type of the evidence against which the injunction is sought and act according to equity, good conscience, and the substantial merits of the case.

[40] I considered the nature of the Applications and the expediency with which these matters are brought before the Commission, and I accepted into evidence the witness statement of Ms Reeve. Mr Trindade was provided the opportunity to make submissions on what weight was to be attributed to the evidence of Ms Reeve. However to that end, in making my decision it has not been necessary to rely on the evidence of Ms Reeve at paragraphs [8] to [18] of her witness statement.

Is a composite question permissible?

[41] As stated earlier it is not in contention that it is a matter for the Applicants to determine the kind of industrial action proposed to be taken to the employees to be balloted. The objection by HammondCare is that pursuant to s.437(1) of the Act, there is a requirement that the application for an Order must unambiguously specify the nature of the particular industrial action so as to allow a ballot to be conducted in order to determine whether (or not) employees wish to engage in particular protected industrial action for an agreement.

[42] HammondCare argue the object of the relevant division in s.436 of the Act is to ensure that those who are to be balloted are afforded a simple and democratic process and by allowing a composite question for multiple types of industrial action, the object of the Act is not being met.

[43] In Transport Workers Union of Australia, 13 Commissioner Lewin considered the objects of the Division in the following terms:

“[27] It is convenient at this point to refer to paragraphs r285 and 1755 of the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

‘r.285. The requirement to hold a mandatory secret ballot authorising industrial action will be retained. However, provisions will be streamlined and simplified, impacting positively on users of the system. Further details are provided below.’

‘1175. Clause 436 states that the object of the Division is to provide bargaining representatives with access to a fair, simple and democratic secret ballot process in order to determine whether employees wish to take certain types of protected industrial action. The Division contains facilitative provisions designed to provide a means for assessing the level of support for protected industrial action. The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees.’ (All emphasis added)

[28] In light of all of the above it is therefore relevant to consider the following when deciding whether or not to grant the application:

• Would the granting or refusal of the application contribute positively to clarity in the rules governing relevant industrial action?



• Would granting or refusal of the application streamline and simplify the process whereby the relevant employees can take protected industrial action for the proposed enterprise agreement?



• The democratic process which has been followed;



• Would simplification in the process for the authorisation of industrial action for the proposed enterprise agreement be served by granting or refusing the application?



• Would granting or refusing the application be fair to the employees, who are the persons whose wishes are the subject of the provision of s.436 and the conduct of the ballot?



• Would the exercise of the discretion to refuse the application be likely to have the effect of delaying or frustrating the taking of protected industrial action of employees of MGC for the purposes of the proposed enterprise agreement?

[44] In his decision, the Commissioner made reference to those considerations and relevantly states:

“[32] It is further difficult to see what unfairness to the employees who were eligible to vote in the ballot would arise if the application were granted. The outcome of the ballot does not require the taking of any of the specified protected industrial action. If employees choose to take such action, and the action is duly notified in accordance with the Act, the consequence of the ballot and the extension sought is merely to provide the authorisation necessary for the legal immunity conferred by the Act to arise. Employees will make a choice to take authorised industrial action for themselves, with the statutory protection, if the application is granted.

[33] It is hard to see how, having rejected MGC’s offer of terms for an enterprise agreement by a majority vote, the relevant employees would not find the situation inexplicably complicated if the application were refused. If the application were to be refused they would, shortly, be unable to, regardless of the outcome of the protected action ballot declared in January and the rejection of MGC’s offer of terms, take protected industrial action in order to achieve an agreement with MGC on mutually acceptable terms for an enterprise agreement, if they considered it necessary to do so.”

[45] Section 436 of the Act establishes that it is the employees who decide whether or not they wish to engage in protected industrial action. The employees to be balloted have already voted against the proposed enterprise agreement. I agree with the observation in the decision of Lewin being that the outcome of the ballot does not require the taking of any of the specified protected industrial action. The requirement for a specific yes or no vote for each form of proposed action for employees who wish to take some of the action and not others is therefore inconsequential. Employees who vote for all forms of industrial action proposed in the Order can choose to take some or all of the action specified if the action is duly notified in accordance with the Act.

[46] Whether a composite question in a protected action ballot can authorise multiple types of protected industrial action has been considered by a Full Bench and single members of the Commission. It has been well held that that s.437 of the Act requires that the questions should describe the industrial action in a way that employees are capable of responding to them.

[47] HammondCare rely on the decision of Watson VP in FreshExchange in which his Honour rejected a composite question approach, instead requiring separate yes/no answer to each question to be asked. The question to be put to employees in this matter included the following:

“In support of reaching a union collective agreement with your employer do you support the taking of protected industrial action against your employer which may involve one or more of the following:” 14 (emphasis added)

[48] A conjunction of various proposed forms of industrial action were then listed.

[49] At the hearing of FreshExchange his Honour raised concerns that the question proposed to be put to employees could be said to be ambiguous and that the ambiguity would be overcome if a series of questions was asked by reference to each form of proposed industrial action.

[50] Giving consideration to the provisions of the relevant legislation his Honour observed:

“[9] These provisions are similar but not identical to the corresponding provisions of the Workplace Relations Act 1996. In relation to those provisions a Full Bench of the Australian Industrial Relations Commission in Country Fire Authority v United Firefighters’ Union of Australia said:

‘As noted above, the requirement in s.452(1)(a) is that the application for a protected action ballot must include the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action. If industrial action is approved by a secret ballot, and all other pre-requisites for protected action are present, a written notice to the employer of intended industrial action is required to state the nature of the intended action and the day when it will begin (see s.441(6)). It was submitted by Mr. Parry SC, who appeared with Mr O’Grady for the CFA, that the use of the same words in s.441(6) and s.452(1) requires a similar approach - albeit that the notices are directed on the one hand to an employer, and on the other, to employees. As a matter of construction we believe this is correct. Further, while the intention of the legislature can only be gleaned from the provisions of the legislation in this case, it appears logical that when employees are asked whether to authorise industrial action in a protected action ballot, the nature of the proposed industrial action is expressed clear enough to enable them to make an informed choice.’

[10] In my view the legislation requires an application to propose a question and contain other details about the industrial action and other relevant matters such as will permit employees to make an informed choice on whether to authorise the particular action specified in the question. A question which is ambiguous or does not permit such a result does not comply with the requirements for a valid application.” (endnotes not reproduced)

[51] At paragraphs [11] and [12] his Honour concludes the construction of the question to be put to employees was misleading and ambiguous as it mixed the notions of authorising industrial action and the taking of one or more forms of industrial action. His Honour observed that the mixing of those notions could not lead to the view of employees who vote on the question being expressed in the ballot:

“[12] …What is apparently being sought is authorisation for all twelve forms of industrial action. But because the union apparently does not propose to organise and take all twelve forms of industrial action it has sought to convey the limited practical application of the action by the use of the phrase “one or more” in the question. The mixing of these notions has resulted in a misleading and ambiguous question which cannot, in my view, lead to the views of employees who vote on the question being expressed in the ballot.”

[52] His Honour found the question to be ambiguous by use of the phrase “one or more” in the introductory wording. His Honour provided that in order to address this problem a response to each individual form of industrial action could be sought. He did not however make any reference to an objection of the use of a composite question in a different format.

[53] HammondCare also rely on Pelican Point in which Deputy President Bartel decided:

“[23] …The question contains five discrete actions and in my view should either be framed as five distinct questions, or alternatively should be reworded to make it clear that employees are voting to take all or none of the five discrete actions.…”

[54] I agree with his Honour’s decision in which he relevantly states that an ambiguous question cannot lead to the views of employees who vote on the question being expressed in the ballot. The decision of Deputy President Bartel considered the potential for confusion that can come from a composite question in the format proposed and he refused to make the Order.

[55] In my view it is necessary that in circumstances where there is a composite question, the question should be clear in its proposition to employees who are voting. The mixing of notions and the requirement to respond to a mixed proposition for a number of separate discrete actions such as “engage separately, concurrently and/or consecutively” in a single yes or no response are misleading and ambiguous and cannot lead to the views of employees who vote on the question being expressed in a ballot.

[56] However, I am of the view the situation in the applications before me is somewhat different. There’s no mixing of notions and the question in its current form is clear and concise. The question has been framed in terms similar to those specified by Deputy President Bartel at paragraph [23] of his decision. The proposed question to the employees to be balloted in the ANMF Application is:

“By answering “YES” or “NO”, do you, for the purpose of advancing claims in the negotiation of an enterprise agreement between the Australian Nursing and Midwifery Federation and HammondCare agree to authorize all of the following types of industrial action:”

[57] The proposed question to the employees in the HSU Application is in identical terms to that of the ANMF.

[58] The Applicants rely on the decision of John Holland in which the full bench stated:

“[16] We draw attention in particular to the requirement for notice in ss.414(1) and (6). If the action specified in the notice is not authorised by the relevant ballot, any action taken pursuant to the notice will not be protected industrial action. For this reason there will be a natural tendency for bargaining representatives to frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot. If the ballot questions describe industrial action in a general way it might subsequently be held that specific types of industrial action were not authorised. No doubt, for that reason, a number of bargaining representatives have drafted ballot applications containing very detailed questions.”

[59] The full bench held the requirements of s.437 to mean as follows:

“[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.”

[60] The Applicants argue the Act does not impose any particular requirement for the form of the question, there is no particular requirement for each question to be asked separately, only that the question is to be sufficiently intelligible and specific to enable the employees to respond.

[61] In their submission the ANMF put “it is an extraordinary proposition that an employee cohort of the kind employed by HammondCare might in some way be incapable of understanding the question that they are being asked by this ballot question and responding to it.

[62] It is clear both approaches, the posing a single yes/no question for each proposed form of industrial action, and a single composite question for all forms of proposed industrial action, have been accepted by the Commission. That is providing the questions are unambiguous in that they do not contain mixed notions of the sort in FreshExchange and Pelican Point and are capable of being understood and answered by those being balloted.

[63] It was not argued by HammondCare that the question proposing a yes/no vote for all the different types of industrial action were ambiguous in any way. Rather, the ambiguity lies in the construction of the question in that a single composite question does not provide the option for employees to vote for a particular form of industrial action. HammondCare argue that by posing a single composite question, those to be balloted are not afforded a democratic process to which they can vote for or against industrial action.

[64] It has been established and I agree that the risks associated with the drafting of questions are initially taken by the bargaining representatives making the application. I agree it is appropriate to follow the approach taken in John Holland and to adopt the view that, in most cases, the nature of the question or questions to be proposed in a protected action ballot application will be a matter for the applicants to determine, providing the plain meaning of the words is able to be understood.

[65] I do not find the question being posed by the Applicants in this case to be ambiguous and for those reasons stated earlier, those employees to be balloted in this Application are being provided with the democratic process of being able to vote in a ballot which requires a yes or no vote for authorising all of the types of industrial action proposed. The risks for the Applicants in proposing a single composite question for all types of industrial action are that an employee who does not support some of the proposed forms of action may vote no to all. I am satisfied the approach adopted by the Applicants in this matter does not render the Applications invalid.

Extension of the notice period

[66] The second matter for determination concerns HammondCare’s submission that the existence of exceptional circumstances warrant granting an extension of the written notice to be provided pursuant to s.414(2) of the Act being more than three working days.

[67] The circumstances said by HammondCare to be exceptional circumstances justifying the specification of the maximum permissible notice period of seven (7) working days were specified in detail in written and oral submissions and the witness evidence of Ms Thomas. Those reasons were:

● The effect the proposed industrial action would have on the care provided to HammondCare residents, including those with complex comorbidities and those with severe behaviours of concern related to either dementia, or psychiatric illnesses.
● Availability of agency relief.
● There will be significant risk to the residents and staff at HammondCare’s Namarra facility if replacement staff are not properly trained in the HammondCare Model.

[68] Both parties relied on the decision of Vice President Lawler in CEPU v Australia Postal Corporation. 15 The matter was concerned with similar provisions under the Workplace Relations Act 1996. VP Lawler summarised the meaning of exceptional circumstances in the context of the provisions in the Workplace Relations Act 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.”

[69] In the following paragraph, VP Lawler also considered whether exceptional circumstances existed and whether those exceptional circumstances if they existed justified an extension of the required notice period:

“[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances ‘justifying’ the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.”

[70] Further Vice President Lawler stated:

“[21] 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.”

[71] The decision of Lawler has been followed in a number of single member decisions including those relied on by HammondCare. 16 In both decisions the period of written notice was extended.

[72] In making her decision in ANF v Victorian Hospitals’ Industrial Association 17Commissioner Gooley gave consideration to the nature of the industrial action, the nature of the employer’s business and the nature of the impact the industrial action would have on those who rely on the services provided by the employer.

[73] It was put by the Applicants the purpose of the notice is to enable the employer to take necessary defensive action. In their submission the Applicants also refer to Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 18in whichthe full bench observed:

“[12] …The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action…”

[74] When considering the nature of the industrial action, the nature of the employer’s business and the nature of the impact the industrial action would have on the those who rely on the services provided by the employer, the issue is whether those exceptional circumstances, if they exist, justify an extension of the required notice period.

Patient Care

[75] Ms Thomas’ evidence was HammondCare provides around the clock care and does not have the option of shutting down operations or ceasing to provide services until the industrial action is over. 19 Ms Thomas was genuine in her concern for the residents and the importance she placed on residents receiving the HammondCare model of care.

[76] Ms Thomas’ evidence was the HammondCare model has four distinct elements consisting of empowered care staff, engagement with residents, engaging in life and the environment in which care is provided.

[77] Ms Thomas’ evidence was there were a raft of high level care needs for those residents with complex comorbidities and those with severe behaviours of concern related to either dementia, or psychiatric illnesses. 20

[78] Mr Olden gave evidence that at the present time all food was provided to the residents by Caulfield Hospital. Ms Thomas refutes this evidence explaining the current situation is that breakfasts, cereals, and toasts are prepared and taken to the residents’ room by the care staff and this is the case for morning and afternoon tea. Once a week, care staff also provide a cooked breakfast of bacon and eggs to the residents. 21

[79] Ms Thomas’ evidence was that they have many patients with dynamic complications of an acute care facility, residents with complex wounds and residents on a mix of sliding scale and daily doses of insulin. Many of these patients can become very acutely unwell and require care from registered nurses as well as carers and often require close monitoring. 22

Replacement Staff

[80] Ms Thomas’ evidence was Programmed, which is the agency mostly utilised to obtain agency relief staff for routine vacancies, was unable to fill shifts in the previous month when requested. It was her evidence that Programmed was able to fill less than 80 per cent of shifts in cases where they were provided with several days’ notice or short notice. 23

[81] Ms Thomas’ evidence was that between December 2015 to May 2016 there have been between three to five vacant beds, and there is no funding provided for the vacant beds. The consequences are that HammondCare have to reduce staff during those times. There are two registered nurses for every 30 residents and the majority of the care workers are medication competent and consequently, the registered nurses are able to cover a fifth shift. 24 HammondCare do not however require their carers to have any formal qualifications.25

[82] Ms Thomas’ evidence was HammondCare use part time employees that have regular shift patterns and a large majority of their part time employees are overseas students who are only permitted to work up to 20 hours per fortnight. HammondCare are unable to utilise those employees for sudden large shortfalls in staffing levels. 26

[83] In cross-examination, Ms Kelly identified a number of deficiencies in the evidence of Ms Thomas in that her evidence did not adequately prove some of the matters HammondCare relied upon in support of their argument. Ms Thomas accepted it was possible to provide care to the residents without the workers understanding the HammondCare empowered care model. 27

[84] Ms Thomas also accepted she was able to prioritise the Namarra facility utilising the existing employees. Ms Thomas also accepted there are a maximum of 40 employees rostered on a shift at any one time and there were a total of 230 people available to fill the shifts however she argued some of them had limited availability for numerous reasons including family commitments and working elsewhere.

[85] Ms Thomas also accepted that the patient care provided in the face to face element of the model could be provided to residents through rotating carers. She accepted it was possible to provide the same level of care to patients through a constantly changing number of carers although it was not HammondCare’s preferred model. 28 Ms Thomas also accepted, regardless of how many days’ notice HammondCare was provided, residents would experience a change of carers providing them with care.29

[86] Ms Thomas’ evidence was that the provision of care to the residents outside of the HammondCare model would put the residents at great risk and traditional institutional models would not be safe at the HammondCare facilities. 30 However she later accepted the traditional institutional model of care was commonly applied in other aged care facilities and those facilities were capable of providing safe and effective care for aged care residents with dementia. To her knowledge, Ms Thomas was not aware of the HammondCare model of care being applied to any other facility in Victoria.31

[87] Ms Thomas also accepted that it was possible to provide care without the carers cooking all of the resident’s meals and the service and provision of the meals currently provided to residents could be done by those not trained in the HammondCare model. HammondCare do not require their carers to have any formal qualifications and the training provided by HammondCare does not lead to a certificate III qualification in aged care. 32

[88] Ms Thomas gave further evidence that when HammondCare were unable to fill vacancies through Programmed they filled those vacancies by staff doing overtime, a manager on occasion or “we do use - regularly go to Belmore agency, and Caring for you”. 33 Ms Thomas’ evidence was she had not spoken to either agency about their capacity to provide carers in the event of industrial action and that the carers engaged by HammondCare from those agencies are not trained in the HammondCare model of care.34 However, Ms Thomas made the point that she had been unable to source a registered nurse earlier that week from any of the agencies.

[89] The Applicants submit Ms Thomas’ evidence does not provide a suitable reason for granting HammondCare an extension of time for the notice period. Specifically, the Applicants submit that Ms Thomas had made no inquiries as to how many agency staff had been trained in the HammondCare model of care, and how many of those trained agency staff are still available to work at HammondCare. As no such inquiries had been made, HammondCare’s reliance on the lack of availability of relief resources as a reason for granting an extension of the notice period could not be relied upon.

[90] Ms Thomas also gave evidence that the HammondCare model required all new employees to complete four days of orientation induction training and four buddy shifts, however this is not a legislative requirement. 35

[91] The training consists of two days orientation to HammondCare covering the Mission and Values, the model of care, how HammondCare work, and the expectations as well as two days dementia care essentials. Ms Thomas accepted that an appropriately qualified agency employee could provide care to the HammondCare residents without having gone through the first two days of training. 36 Ms Thomas also accepted an agency employee who had a certificate III in aged care would be capable of providing care to a resident with dementia without having gone through the training.37

[92] Ms Thomas also accepted she had not properly determined the capacity for the agencies to provide replacement staff in the event there was industrial action as she had made no inquiries. Although Ms Thomas relies on her evidence that due to staff commitments it would be difficult to move staff between states, she accepted she had not taken any steps to identify if there were any staff in New South Wales who would be prepared to come to Victoria should they be required.

[93] The Applicants submitted that there is no proper basis for Ms Thomas’ evidence that it would be extremely difficult, if not impossible, to be able to source a suitable number of adequately trained staff to replace absent staff and in the absence of such evidence the extension of the notice period should not be granted.

[94] The Applicants argue HammondCare have not put any evidence before the Commission that suggests that the statutory norm is inadequate for the purpose of making reasonable necessary contingency plans.

[95] HammondCare relies on risk to residents and staff at the Namarra facility if replacement staff are not properly trained in the HammondCare model. However, Ms Thomas made clear concessions in cross examination that agency staff who are not trained in the Hammond Care model of care can provide safe and competent care to the residents. Ms Thomas also gave evidence HammondCare were able to prioritise staffing to cover the Namarra facility.

[96] The assessment in this matter involves determining whether the given set of circumstances constitute exceptional circumstances “justifying” an extension of the required notice period for the purposes of s.414 of the Act. Whilst the HammondCare model might be unique and uncommon, on balance, I am not persuaded, in the exercise of my discretion, that there should be an order extending the required period.

[97] When I weigh the factors that I am required to consider, I am not persuaded that the circumstances relied upon by HammondCare are such to justify an extension of the period of notice in all the circumstances of this case.

Conclusion

[98] For the reasons outlined above, I have rejected HammondCare’s objections to the Applications and determined that Orders should be issued with the question in the form proposed by the Applicants. Therefore, pursuant to s.443(1) of the Act, the Commission must make the protected action ballot orders sought by the Applicants. Orders in respect of each of the Applications are issued together with this decision.

COMMISSIONER

Appearances:

S Kelly of Counsel with S O’Meara, solicitor for the Australian Nursing and Midwifery Federation.

S Tsitas for the Health Services Union.

D Trindade and M Condello, solicitors for HammondCare

Hearing details:

2016.

Melbourne:

September 16.

 1   PR576755.

 2   [2009] FWA 221.

 3   [2010] FWA 7739.

 4   [2010] FWAFB 526.

 5   [2012] FWA 4633.

 6   [2015] FWC 5173.

 7   [2014] FWC 8809.

 8   [2013] FWCFB 9549.

 9   [2012] FWA 4633.

 10   [2011] FWA 7198.

 11 (1999) 91 FCR 463.

 12   [2009] FWAFB 1698.

 13   [2011] FWA 1097.

 14   [2009] FWA 221 at [4].

 15   [2007] AIRC 848.

 16   Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2011] FWA 7198; and Health Services Union vVictorian Institute of Forensic Mental Health [2012] FWA 4633.

 17   [2011] FWA 7198.

 18   [2009] FWAFB 1698.

 19   Exhibit R1, paragraph 10.

 20   Transcript of Proceedings PN232.

 21   Transcript of Proceedings PN237.

 22   Transcript of Proceedings PN241.

 23   Transcript of Proceedings PN221.

 24   Transcript of Proceedings PN244.

 25   Transcript of Proceedings PN359.

 26   Transcript of Proceedings PN245.

 27   Transcript of Proceedings PN273.

 28   Transcript of Proceedings PN263 to PN264.

 29   Transcript of Proceedings PN285.

 30   Transcript of Proceedings PN274.

 31   Transcript of Proceedings PN275 to PN283.

 32   Transcript of Proceedings PN359 to PN362.

 33   Transcript of Proceedings PN301.

 34   Transcript of Proceedings PN302.

 35   Transcript of Proceedings PN310.

 36   Transcript of Proceedings PN314.

 37   Transcript of Proceedings PN315.

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