Australian Nursing and Midwifery Federation v Healthscope Operations Pty Ltd

[2024] FWC 2881

[2024] FWC 2881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v

Healthscope Operations Pty Ltd

(B2024/1353)

DEPUTY PRESIDENT HAMPTON MELBOURNE, 18 OCTOBER 2024

Proposed protected action ballot of employees of Healthscope Operations Pty Ltd

1. This is an application by the New South Wales Branch of the Australian Nursing and Midwifery Federation (ANMF or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Healthscope Operations Pty Ltd (HealthScope or Employer).

1. On 17 October 2024, following some initial exchanges between the parties, the Commission was advised that the Employer, in effect, did not object to the Application, as amended.[1]

1. In dealing with the application, the Commission raised some concerns with the parties as to whether elements of the ballot question fell within the scope of industrial action as defined in s.19 of the Act. The ANMF subsequently amended those elements of the ballot question. In the context of the workplace and the work involved, and in the absence of any objection, I have dealt with those elements of the question on the basis that the action contemplated would, given the nature of the work involved, necessarily involve a restriction or limitation on, or a delay in, the performance of (normal) work so as to fall within the meaning of industrial action,[2] and meet the relevant requirements of the Act.[3]

1. In response to the amended question, Healthscope also subsequently requested the ANMF to vary clause 5 of the proposed order to include a yes/no response for each form of potential industrial action under multiple questions, rather than to the single consolidated ballot question with 11 elements. The ANMF did not consent to the proposed change. The parties confirmed they were content with the Commission dealing with the matter on the basis of the positions as advanced. I return to this aspect below.

2. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Sarah Elizabeth Gardner, Manager, setting out the steps taken by the ANMF in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Healthscope, I am satisfied that there is a notification time in relation to the proposed agreement and that all of  the requirements in s.443(1) of the Act have been met.

1. The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. In relation to the consolidated form of ballot question, there is much to be said for giving the employees involved an opportunity to express a separate view on each form of potential industrial action. This is more democratic and in many senses is to be preferred. However, the requirements of the Act are broadly stated, that is, the nature of the proposed industrial action must be stated in the ballot question or questions.[4] As a Full Bench of the Commission has made clear[5] in relation to proposed ballot questions:

“[53]     In summary, therefore, an application for a protected action ballot order will comply  with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued. We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.

[54]     As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole. It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.

[55] That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant’s intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question.”

Footnotes Omitted

1. In that light, I did not require the Applicant to amend the clause of the Order concerned.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 28 October 2024.[6] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR780330.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] The Respondent initially raised various concerns about the form of draft orders used and the draft order annexed to the F34. This was clarified in an amended application removing the incorrectly annexed draft order and clarifying the intended draft order was attached to the initial application.

[2] Section 19(1)(a) as the elements of the question concerned are not stated to be a ban, limitation or restriction on the performance of work – s.19(1)(b) of the Act.

[3] Sections 437(3)(b) and 443(3)d) of the Act.

[4] Sections 437(3)(b) and 443(3)d) of the Act.

[5] National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204.

[6] This is, in effect, 5 working days from the anticipated commencement date of the ballot and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR780331>