Australian Nursing and Midwifery Federation v NPT Group T/A National Patient Transport
[2018] FWC 1224
•28 FEBRUARY 2018
| [2018] FWC 1224 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
United Voice; Australian Nursing and Midwifery Federation
v
NPT Group T/A National Patient Transport
(B2018/123)
| COMMISSIONER WILSON | MELBOURNE, 28 FEBRUARY 2018 |
Proposed protected action ballot of employees of National Patient Transport Group Pty Ltd.
This is an application for a protected action ballot order by the United Voice and Australian Nursing and Midwifery Federation (ANMF) (collectively, the Applicants) in relation to certain employees employed by National Patient Transport Group Pty Ltd (NPT) as Transport Officers, Ambulance Transport Attendants, Clinical Instructors, and Registered Nurses and whose employment is presently covered by the National Patient Transport Group Pty Ltd Enterprise Agreement 2014[1], (the 2014 Agreement), the nominal expiry date of which is 30 June 2017.
The applications are made pursuant to s.437 of the Fair Work Act 2009 (the Act).
The Applicants seek to ballot all employees of the United Voice and ANMF who will be covered by the proposed enterprise agreement and for whom the United Voice and ANMF are their bargaining representatives. The material filed in this application by the United Voice and ANMF asserts that they are bargaining representatives for the purposes of s.176(1) of the Act and that they are genuinely seeking to reach agreement. The Applicants propose a single rolled up question of 18 elements to which respondent employees will need to answer with a single “yes” or “no” response.
NPT opposed the application, initially in total, but later through its written submissions, in respect only of three of the question elements proposed by the Applicants. The substance of NPT’s objection to the application is that three of the question elements are not “industrial action” within the meaning of s.19 of the Act and are thereby not capable of being ordered by the Commission. The three questions referred to by NPT in its objections are as follows (with the NPT objection indicated with the underlined words):
“• The wearing of campaign related materials, such as t-shirts, badges, and stickers, and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public;
• The distribution of campaign related materials to patients, their families, the public and the media and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public; and
• The utilization of the employer's property for the provision of the information concerning the views of the employees about any aspect of the unions' campaign and stopping work up to ten minutes duration on each occasion to explain those views to patients, their families and the public.”
Because of the objections of NPT the matter was listed for hearing on 27 February 2018 at which representatives of United Voice and the ANMF attended and made submissions. No appearance was made for or on behalf of NPT although the Commission took into account the company’s written submissions on the subject of its objections.
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.
NPT’s objection to the applications is that, in its view, the three question elements referred to above, disclose actions which are not “industrial action” within the meaning of s.19 of the Act. No objection is put forward by NPT to the effect that either of the Applicants is not entitled for reason of s.437 of the Act to make an application for a protected action ballot order, or that either or both applicant is not genuinely trying to reach an agreement with NPT. Accordingly, the only matter that requires determination in this decision is whether the three question elements referred to above are capable of inclusion within the Commission’s order.
The central part of NPT’s objection to the three question elements identified above is that the underlined parts do not disclose any limitation on the performance of work. In its submissions NPT referred to s.19 of the Act’s definition of “industrial action” which requires action so defined to be an impact upon the performance of work, with the concomitant submission that the mere wearing of campaign related material, or distribution of campaign related material, or utilisation of the employer’s property for the provision of information does not in any respect lead to a finding that the performance of work is different to that which ordinarily would occur.
It was argued that on the basis of established authority “performance of work” meant work performed by the employees in question and that while provision of information to the media might be in breach of an employee’s contract of employment, such did not involve the performance of work in a manner differently to how it was usually performed and was thereby not industrial action (with reference to Ambulance Victoria v United Voice [2014] FCA 119, [23]). It was further submitted that similarly it had been found that the wearing of a union t-shirt was not industrial action because it did not interfere with the way work was performed or result in a limitation on the performance of work (per UFU v Easy [2013] FCA 763, [157] – [159]). Finally, it was argued that it had been found that a delay in sending emails was not itself industrial action because, again, such did not result in any limitation on the performance of work (per IEU v All Hallows School[2016] FWCFB 262, [11]).
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.
In considering the NPT 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, PR946290, 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).”
The submissions of the Applicants in respect of the NPT objections are to put forward, in essence, that NPT overlooks the fact that each of the question elements in dispute foreshadow a conjunction of two separate action elements:
· the wearing of campaign related materials AND stopping work for up to 10 minutes for the purposes of explanation;
· distribution of campaign related materials AND stopping work for up to 10 minutes for the purposes of explanation;
· utilisation of the employer’s property for information purposes AND stopping work for up to 10 minutes for the purposes of explanation.
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.[3] 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)[4] 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)
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.”[5]
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.”
While there are some risks for the questions as framed by the Applicants in an endeavour to implement protected action if the ballot is successful, for example if campaign clothing is worn WITHOUT a 10 minute stoppage for the purposes of explanation, that is a matter for the Applicants. 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[6] 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.”[7]
After consideration of all of the matters put to the Commission about the proposed question elements, I am satisfied that the question elements are within the power of the Commission to order and that it is otherwise appropriate to make the orders sought by each of the Applicants.
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 must make a protected action ballot order, as sought by the United Voice and ANMF. An order in the form sought by the Applicants will be issued by the Commission.
COMMISSIONER
Appearances:
Ms A. Kaczmarek for the United Voice.
Mr A. Prendergas for the Australian Nursing and Midwifery Federation.
Hearing details:
2018.
Melbourne:
27 February.
<PR600737>
[1] AE408312.
[2] Fair Work Act 2009 (Cth), s.437(1).
[3] [2017] FWCFB 4740.
[4] (2010) 194 IR 239, [2011] FWAFB 4809.
[5] [2017] FWCFB 4740
[6] [2010] FWAFB 526.
[7] Ibid.
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