Australian Nursing and Midwifery Federation v Nillumbik Shire Council

[2016] FWC 3664

[2016] FWC 3664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Nursing and Midwifery Federation
v
Nillumbik Shire Council
(B2016/557)

COMMISSIONER BISSETT MELBOURNE, 8 JUNE 2016

Proposed protected action ballot of employees of Nillumbik Shire Council.

[1] The Australian Nursing and Midwifery Federation (ANMF) has made an application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of the Nillumbik Shire Council (Council). The application was made on 20 May 2016.

[2] The Council has indicated that it objects to part of the question to be asked in the proposed ballot on the grounds that it says that it is not industrial action as defined by the Act.

Legislation

[3] Section 443(1) of the Act states:

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.

[4] Section 437 of the Act states:

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.

The question to be asked

[5] In its application the ANMF propose the following question be put to voters in the ballot:

Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement between the Australian Nursing and Midwifery Federation (Victorian Branch) and the Nillumbik Shire Council…authorise the following forms of industrial action…:

● Two hour, and or four hour, and or eight hour stop work meetings.

● A ban on Maternal & Child Health Nurses filling out electronic diaries.

● A ban on any request or direction for the Maternal & Child Health Nurses to working beyond the ordinary finishing time of work.

● A ban on responding to Council emails.

● Stoppages of normal work each day for successive periods of up to 5 minutes to refer clients and/or their families to ANMF campaign t-shirts and/or leaflets and/or posters and/or stickers

● A ban on requests or directions to be relocated or to assist other Maternal & Child Health Nurses unless part of normal weekly roster.

● A ban on cleaning duties.

● A ban on non-clinical administrative tasks to be completed by the Maternal & Child Health Nurses inclusive of:

• Importing, exporting and transferring of electronic client histories



• Creation of client histories



• Changing or cancelling client or other appointments



• Recording of parent group attendance

[emphasis added]

[6] The Council object to the fifth dot point (underlined) in the question to be put to voters. It says that the action proposed is not industrial action. In all other respects it accepts that the ANMF has met all of the requirements of the Act in relation to the application.

[7] It should be noted that whilst there is only one question to be put to voters that question does encompass a number of different and distinct forms of action.

Submissions

Australian Nursing and Midwifery Federation

[8] The ANMF submits that s.437(3)(b) requires that the nature of the proposed industrial action be included in the application for a ballot order.

[9] It says that action that is ‘stoppages of normal work each day for successive periods of up to 5 minutes’ is clearly industrial action as defined in s.19 of the Act.

[10] It submits that the fact that the proposed stoppage would occur ‘to refer clients and/or their families to ANMF campaign t-shirts and/or leaflets and/or posters and/or stickers’ does not change the nature of the action being taken nor that it is industrial action. Rather, it submits that referral of clients to campaign material and the like is not more than an explanation of the nature of the proposed industrial action consistent with s.437(3)(b) of the Act.

[11] The ANMF says it is not its intention that the short stoppages should involve its members abandoning clients but is proposed to enable its members to engage with clients. It says that a notice of intention to take industrial action pursuant to s.414 of the Act requires that the nature of the industrial action is identified. It submits that, given the relationship between the question asked on the ballot and the notice given pursuant to s.414 of the Act, it is incumbent on it to ensure that it provides the degree of specificity otherwise required under s.414(6) of the Act on the ballot paper.

Nillumbik Shire Council

[12] The Council opposes that part of the question because, it says, the action does not constitute industrial action within the meaning of the Act.

[13] The Council submits that recent decisions of the Fair Work Commission (the Commission) and the Federal Court support its view that the action under question is not industrial action. It agrees that the first part of the question (a stoppage of normal work each day) would constitute industrial action. It submits however that by ‘loading’ the question with the addition of the words ‘to refer clients…to…campaign t-shirts’, the ANMF has ‘infected’ the question with actions that are not industrial action as defined. It submits that the question, as posed, is a clumsy and disingenuous attempt to introduce non-industrial action by the back door.

[14] Council submits that, by including the actions that are to be taken during the period of the stoppage, the immunity that attaches to protected industrial action will attach to that action taken during the stoppage – this may result in members of the ANMF being granted immunity for actions that may well offend the employment contract.

The authorities

[15] The parties referred me to a number of relevant authorities to support the submissions put to me.

[16] In Australian Nursing Federation v Mornington Peninsular Shire Council 1 (Mornington)Vice President Lawler determined that a question in the form of:

Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement...Authorise industrial action by Registered Nurses in the form of distributing information to clients, and the media about the reason for the industrial action, and the wearing of campaign clothing? 2

was industrial action. That decision was upheld on appeal by a majority (Senior Deputy President Watson and Commissioner Gooley 3). In his dissenting decision Senior Deputy President Kaufman, after considering if the action fell within the definition of industrial action in s.19 of the Act, said:

[58] For the purposes of this matter it is only sub-sections (a) and (b) of s.19(1) that are relevant.

[59] The first element of (a) is that there be a performance of work by an employee. Here the work performed by the 19 or so employees affected is that of supporting new mothers after they have given birth. They perform their work either at the council’s maternal and child healthcare centre or they visit the homes of those whom they support. The second element is the manner in which the work is performed. It must be in a manner different from that in which it is customarily performed. The third element, which is an alternative to the second, is that there be the adoption of a practice in relation to the work. In each instance, the action must result in a restriction or limitation on, or a delay in, the performance of the work.

[60] Under (b) there must be a ban, limitation or restriction on the performance of work by the employee engaging in the conduct or on the acceptance of or offering of work by the employee.

[61] There are two types of conduct contemplated by question 5: first, the distribution of information to clients and the media and, secondly, the wearing of campaign clothing. It is necessary to ascertain whether either type of conduct falls within the definition of industrial action in s.19(a) or (b).

[62] I fail to see how either type of conduct falls within either limb of the definition. The first conduct sought to be approved - the distribution of information - even be it within working hours, says nothing about performing the work in a manner different from that in which it is usually performed or the adoption of a practice in relation to the work. There is nothing in the nature of the proposed conduct that suggests that it would result in a restriction or limitation on, or a delay in, the performance of the work. Had the proposed conduct been along the lines of say, a stoppage of work for 5 minutes per shift or per hour in order that information might be distributed, I would have come to a different conclusion. However, the conduct sought to be approved does not contemplate the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which would be a restriction or limitation on, or a delay in, the performance of the work. In my view, conduct that had either of those effects would not be conduct that was authorised by an affirmative vote in favour of question 5. 4

[17] The Council submits that this decision has been displaced by later decisions of the Commission and Federal Court and says that the reliance of the ANMF on the obiter comments of Deputy President Kaufman is misplaced.

[18] In Ambulance Victoria v Untied Voice 5(Ambulance Victoria) Tracey J considered whether the provision of information to the media without approval was ‘industrial action’. His Honour observed:

18 Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present. 6

[19] Tracey J found that:

23 It is, therefore, necessary to identify work normally performed by the relevant employees and the manner in which it is customarily performed. The duties of the managers include the collection and analysis of information relating to response times of ambulances in their areas. It is not part of their duties to provide such information to persons outside Ambulance Victoria, including reporters and others engaged by media outlets. It cannot, in my opinion, be said that making response time data available to the media, in breach of their contracts of employment, involves the performance of their normal work in a manner different from that in which it is customarily performed. It may be different if their work involved the provision of material to the media through certain approved channels and the employees chose to distribute the information by other means. That is not this case. The fact that the proposed action is contrary to contractual terms which are binding on the employees does not, for that reason, amount to the performance of duty in a manner different from the norm. Rules, policies and contractual provisions which proscribe conduct of certain kinds by employees regulate the conduct of those employees in the course of their employment. They do not impinge directly on the manner in which work is performed…

24 In any event, the proposed action in this case cannot, in any relevant sense, be said to result in a restriction or limitation on or a delay in the performance of the employee’s normal duties. What is proposed is the taking of action above and beyond and outside the range of their normal work rather than the placing of a restriction on the performance of those duties. It should not be assumed or inferred that the proposed action will interfere in any way with the performance of the managers’ normal duties. In the course of any shift brief breaks can be and are taken for purposes such as informal conversations with colleagues, toileting and meals. Such breaks do not impinge on the performance of the employee’s normal duties. Communication could occur during such times without interference with normal work. It might also occur in the few seconds involved in the dispatch of an e-mail. Like Kaufman SDP, I accept that the position might be different were the proposed conduct to include express provision for a stoppage of work, even for a short period, in order for the managers to distribute data to the media. No such action has been proposed by the AEA. Section 19(1)(a) is, therefore, not engaged. 7

[20] Again the Council says that reliance on the obiter comments of Tracey J are misplaced and that the Commission should take note of his finding as set out in [23] of the decision. The Council also relies on the reasoning of Ross J in support of its argument that the handing out of campaign material is not industrial action.

[21] In United Firefighters Union of Australia & Sophie Antonakis v Nicholas Easy and others 8(UFU) Ross J was considering an application in relation to general protections under the Act and whether adverse action had been taken against Ms Antonakis for engaging in industrial activity. The industrial activity Ms Antonakis had been said to have engaged in was wearing a union t-shirt – such action having been authorised by a protected action ballot and having been notified to the employer.

[22] His Honour ultimately dismissed Ms Antonakis’ claim of adverse action for engaging in industrial activities:

140 I have decided to dismiss this aspect of the application for three, alternate, reasons:

(i) the wearing of a UFU t-shirt does not constitute industrial action or protected industrial action; or

(ii) by wearing the UFU t-shirt Ms Antonakis was not purporting to engage in industrial action or protected industrial action; or

(iii) the action taken against Ms Antonakis was not taken because she had taken part in industrial action or protected industrial action. 9

[23] His Honour distinguished the circumstances of this case from that in Mornington because:

152 …In Mornington the wearing of union campaign clothing was contrary to the employer’s clothing policy. In the matter before the Court there is no evidence of any policy or directive by the MFB regarding the wearing of union apparel by non-operational staff, such as Ms Antonakis. As the majority in Mornington observed, whether wearing campaign clothing constitutes industrial action depends on the circumstances. In the circumstances of the present matter, wearing a UFU t-shirt while at work did not constitute ‘industrial action’ within the meaning of s 19(1). 10

[24] In the context of the matter before him, his Honour concluded:

154 …I do not consider that the wearing of campaign clothing falls within either limb of the definition of industrial action in s 19(1)(a) of the Act. Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed. 11

[25] In Independent Education Union of Australia v All Hallows’ School Limited and others 12 (All Hallows) the Full Bench was considering an appeal against a decision of Commissioner Booth. The Commissioner considered a question on the protected action ballot as follows:

(ii) employees will delay responding to and/or actioning emails (except for emails which deal with: a genuine health or safety matter for employees or students; or child protection matters) for a period of time - such period will not exceed 30 days, and will include an ‘out of office’ message on their email referring to protected industrial action as the reason for the delay in responding… 13

[26] She found that:

…there is a recognition that an electronic communication from the employees to students, parents and colleagues is part of the work of a teacher occurring within their hours of duty.  That is, responding to emails is work performed by an employee.  The action they are taking is non responding to emails.  However the out of office message, such a message is not work performed by an employee. 14

[27] On this basis she struck out the second part of the question as it related to the ‘out of office’ message.

[28] The Full Bench found:

[11] The Commissioner construed paragraph (ii) as incorporating two actions. We agree with that construction. The first action is a delay in performing work and is clearly a ban and limitation on the performance of work. The second action involves a form of communication to the sender of an email, which may or may not be automatic. In our view, as far as the performance of work is concerned, the out of office email does not involve an additional ban or limitation over and above the first action. The second action would appear to involve the performance of work in a manner different to the manner in which it is customarily performed because it is unauthorised, not approved and inconsistent with normal practice. However the result of the second action is not a restriction or limitation or delay in the performance of the work. Once the first action is taken the second action is more accurately described as a communication of the first action to the person or persons affected by the taking of the first action - the second action is not itself industrial action. The communication does not involve any additional restriction, limitation or delay. In the various cases referred to by the parties the mere communication of industrial action has not been held to constitute industrial action. 15

Consideration

[29] The question proposed by the ANMF seeks to define what the purpose of the five minute stoppage is by specifying what will occur during the five minutes. By defining what will occur during the five minute stoppage does not alter the nature of the action being taken – that the action should be so limited is a matter for the ANMF.

[30] The circumstances in the matter before me can be distinguished from those considered in Ambulance Victoria and UFU both set out above. Each of those cases involved action that, on the findings, bore no relationship to industrial action as defined by the Act. Neither had, as a concomitant part of the action, a stoppage of work.

[31] I am also satisfied that the circumstances of this case can be distinguished from that in All Hallow’s where it was found that the question incorporated two actions – a delay in responding to emails and an ‘out of office’ message on emails either of which could survive without the other. The second action (the out of office message), not being industrial action, could therefore not be included on the ballot. There was no specific action taken in conjunction with the ‘out of office’ reply that could bring that action within the orbit of industrial action.

[32] In this case the actions are put as co-dependent – that is, unless the second action is taken any stoppage for five minutes will not be industrial action authorised by the ballot and without the stoppage the material cannot be distributed

[33] It may well be that the material could be distributed during ‘breaks…taken for purposes such as informal conversations’ as Tracey J explained which ‘do not impinge on the performance of the employee’s normal duties’ but I am not being asked to determine the distribution of material in isolation but as a part of a stoppage of work.

[34] Whilst it is true that the communication proposed in the question by itself will not be industrial action that is not the industrial action proposed. As I have said above the two actions are co-dependent. There is only one action that will be taken and that is a stoppage of work during which material will be provided/explained to clients.

[35] I am satisfied that the action is a ban, limitation or restriction on the performance of work and is, therefore, industrial action as defined by the Act. For these reasons I am satisfied that the questions posed by the ANMF in its application for a protected action ballot order does specify the nature of the proposed industrial action.

Conclusion

[36] Taking into account the submissions made of the ANMF (the contents of which are not disputed), I am satisfied that an application for protected industrial action has been taken pursuant to s.437 of the Act. I am also satisfied that the ANMF has, and is, genuinely trying to reach agreement.

[37] A protected action ballot order will be made today which includes the question posed by the ANMF essentially in the form proposed by the ANMF (with some minor changes to the form of the introductory words).

COMMISSIONER

Appearances:

J. McKenna on behalf of the Australian Nursing and Midwifery Federation.

J. Reid on behalf of Nillumbik Shire Council.

Hearing details:

2016.

Melbourne:

May 27.

 1   [2011] FWA 4235.

 2 Ibid at paragraph [4].

 3   [2011] FWAFB 4809.

 4   Ibid at paragraphs [58] – [62].

 5 [2014] FCA 1119.

 6   Ibid at paragraph 18.

 7   Ibid at paragraphs 23-24.

 8 [2013] FCA 763

 9 Ibid at paragraph [140].

 10 Ibid at paragraph [152].

 11 [2013] FCA 763, [154].

 12   [2016] FWCFB 262.

 13  Ibid at paragraph [4](ii).

 14 Ibid at paragraph [5].

 15 Ibid at paragraph [11].

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