Australian Nursing and Midwifery Federation v St Vincent's Private Hospitals Ltd and ‘St Vincent's Private Hospital Sydney
[2023] FWC 1225
•25 MAY 2023
| [2023] FWC 1225 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Application for a protected action ballot order
Australian Nursing and Midwifery Federation
v
St Vincent’s Private Hospitals Ltd and ‘St Vincent’s Private Hospital Sydney
(B2023/465; B2023/466)
| DEPUTY PRESIDENT CROSS | SYDNEY, 25 MAY 2023 |
Proposed protected action ballot of employees of St Vincent’s Private Hospitals Ltd and St Vincent’s Private Hospital Sydney.
These are applications pursuant to s.437 of the Fair Work Act 2009(Cth) (the Act) by the Australian Nursing and Midwifery Federation (ANMF) for protected action ballot orders (the Applications) in relation to certain employees of:
(a) St Vincent’s Private Hospitals Limited (B2023/466); and
(b) St Vincent’s Private Hospital Sydney (B2023/465).
[Collectively the Respondents]
The Applications were made on 17 May 2023 at 9:53AM.
The parties were able to resolve all issues between themselves but for one ballot question proposed by the ANMF in each of the Applications. A short hearing to determine the Respondents’ objection to that ballot question occurred in the afternoon of 25 May 2023 (the Hearing). In the Hearing a further amendment to the particular ballot question was made, however that amendment did not resolve the objection.
Statutory Scheme
In National Tertiary Education Industry Union v Curtin University[1](Curtain University), the Full Bench of the Fair Work Commission (the Commission) outlined the relevant statutory scheme as follows:
[6] The scheme of enterprise bargaining for which the FW Act provides has, as one of its fundamental features, the right for participants in bargaining to take protected industrial action in prescribed circumstances. Section 415(1) of the FW Act provides that no action lies under any law in force in a State or Territory in relation to protected industrial action unless it has involved or is likely to involve personal injury, wilful or reckless destruction of, or damage to, property or the unlawful taking, keeping or use of property. One species of protected industrial action is “employee claim action” – that is, industrial action taken by employees to support or advance claims in relation to a proposed enterprise agreement that are about, or are reasonably believed to be about, permitted matters (s 409(1)(a)). In order for such industrial action to be protected, it must meet the requirements specified in ss 409, 413 and 414. One of those requirements, in s 409(2), is that the industrial action must be authorised by a protected action ballot.
[7] The requirements and process for the initiation and conduct of protected action ballots are set out in Div 8 of Pt 3-3 of the FW Act. Relevant to this appeal, s 437(1) provides that a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to the Commission for an order requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected action for the agreement… Subsections 437(3) and (4) prescribe requirements for the content of the application as follows:
Section 443(1) of the Act states:
(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.
Section 437 of the Act provides:
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
For employee claim action authorised by a declared protected action ballot to be protected, an employee’s bargaining representative must notify the employer before the action is actually taken. Section 414(1) provides:
414 Notice requirements for industrial action
Notice requirements—employee claim action
(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.
The required period of notice for such action is prescribed by s 414(2). As to the content of the notice, s 414(6) provides:
Notice requirements—content
(6)A notice given under this section must specify the nature of the action and the day on which it will start.
The Question
The totality of the ballot questions originally posed by the ANMF were as follows:
QUESTIONS
In support of reaching an Enterprise Agreement with ‘St Vincent’s Private Hospital Sydney’, do you authorise protected industrial action against your Employer, separately, concurrently and/or consecutively, in the form of:
1. A refusal to undertake processing of chargeable items forms and charge sheets for billing purposes, noting that this would not include any bans which would impact on the ability to track implantable devices and products as part of patient care? (Yes/No)
2. A ban on compliance with the ‘media and public representation’ section of the SVHA Code of Conduct, social media policies and all other relevant policies insofar as to enable engaging with members of the public and the media, at any time, through any medium, in relation to the union campaign? (Yes/No)
3. A refusal to perform clerical duties including but not limited to: telephone duties, photocopying, faxing, booking patients? (Yes/No)
4. A refusal to participate in tasks associated with the transferring of patients who do not require a nurse escort, including but not limited to: transferring equipment, transferring furniture, transferring beds and transferring patients? (Yes/No)
5. A refusal to sign pathology or X-ray forms on behalf of medical officers? (Yes/No)
As noted above, in the Hearing, Question 2 was amended by the ANMF to:
2. A refusal to perform work unless free to make comments through any medium to members of public and the media in relation to the need for safe staffing and fair pay, in non-compliance with the ‘media and public representation’ section of the SVHA code of conduct and SVHA national social media policy? (Yes/No)
While the Respondents did not object to the amendment to question 2, they maintained their objection to the contents of the amended question.
The Respondents’ Objections
Pursuant to directions issued by Vice President Catanzariti, the Respondents provided a written outline of their objections, that was supplemented with further oral submissions at the Hearing. The two bases of objection outlined were:
(a) The question fails to disclose a form of action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1) of the Act; and
(b) The question was ambiguous and was not open to be answered “yes” or “no” by employees in the ballot. Should the question be approved, employees would risk disciplinary action for failure to comply with the stated policies, if for example, their engagement with the public or media, included disparaging comments about the Respondents. The SVHA Code of Conduct establishes guidelines for appropriate professional behaviour, integrity, and ethical conduct within the organisation, and the Respondents submitted that any industrial action should occur within those established guidelines.
The Respondents referred to the decision of the Full Bench of the Commission in John Holland Pty Ltd v AMWU and AWU[2] where the Full Bench found:
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).
The Respondents also referred to Curtain University, particularly to paragraphs [53] (in part), and [54], and submitted the proposed action specified in questions must be capable of constituting “industrial action” within the meaning of the definition of that expression in s 19(1) of the Act.
At the Hearing, the Respondents particularly relied upon the judgment in Ambulance Victoria v United Voice[3](Ambulance Victoria), where Tracey J found:
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. A breach of such a proscription cannot, in my opinion, be regarded as a departure from the customary manner of performance of an employee’s work. Were it otherwise, contraventions by employees of policies which prohibit sexual harassment or discrimination of various kinds could be regarded as departures from the customary manner of performance of work and thereby amount to industrial action.
Applicant’s Response
The Applicant submitted that the final wording allowed employees to, for example, work in circumstances where they could post on Twitter while working, thereby performing work in a different manner.
The Applicant submitted that similar phraseology to that used in the proposed question had been approved in other matters where union badges and Union branded scrubs had been contemplated. The Applicants referred to the Commission decisions of Re Mornington Peninsula Shire Council[4], and Australian Municipal, Administrative, Clerical and Services Union v Lend Lease.[5]
Consideration
The Commission’s power to make a protected action ballot order under s.443 of the Act is not discretionary in nature. Section 443(1) imposes a duty on the Commission to make an order if two conditions have been met. First (in paragraph (a)), that an application for such an order has been made under s.437, and second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. In this matter it was not in dispute that both conditions were met.
Being therefore obliged to make an order, it is then appropriate to determine the content of the order in accordance with s.443(3) to (5). However, it is also necessary to satisfy the requirement in s.443(1)(a). As the Full Bench found in Curtain University:[6]
It may be accepted that for an application to have been made “under” s 437, it must have been made in conformity with s 437. That proposition is implicit in all the previous authorities relating to protected action ballot orders and was not contested by the NTEU in this case. That means that the application must specify the matters in s 437(3). We note at this point that, unlike s 443(1)(b), the jurisdictional prerequisite in s 443(1)(a) is not expressed in terms of the Commission’s satisfaction as to the requirement. Therefore, whether an application has been made under s 437, including whether it specifies the matters in s 437(3)(b), must be regarded as a matter of jurisdictional fact.
The Full Bench in Curtain University acknowledged that the authoritative statement in relation to what was necessary for compliance with s.437(3)(b) had previously been outlined by another Commission Full Bench in John Holland Pty Ltd v AMWU and AWU (John Holland)[7],where that other Full Bench found (at [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.
[Emphasis of Curtain University Full Bench]
Perceived ambiguity in a specified question does not constitute a basis to find that an application does not comply with s.437(3)(b). The questions in the ballot must describe the industrial action in a way that employees are capable of responding to. The consequence of any ambiguity would arise at the point of consideration as to whether particular industrial action taken pursuant to a notice issued under s.414 is authorised as required by s.409(2) such as to be “protected”.
Section 437(3)(b) also requires that the question(s) must include specification of “the nature of the industrial action”, though such nature is an expression of high generality, referring to the “character, kind or sort” of the industrial action. As the Full Bench found in Curtain University:[8]
The proposed action specified in the question must be something that is capable of constituting “industrial action” within the meaning of the definition of that expression in s 19(1) of the FW Act. However, it is not necessary that the specified action constitute industrial action in all conceivable circumstances, for the reasons stated by the Federal Court (Tracey J) in Ambulance Victoria v United Voice:
“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.”
The Full Bench found in Curtain University concluded:[9]
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.
[Emphasis added, footnotes omitted]
The above passage from Curtain University, which was unfortunately only reproduced partially in the Respondents’ written outline of objections and not including the highlighted section, makes it abundantly clear that ambiguity is limited to basic comprehensibility, and that the sharper focus on description of action is trained on the action(s) outlined in any s.414 notice.
I do not consider that the proposed ballot question as amended is at all ambiguous. It presents a clear proposal that is reasonably capable of being answered “yes” or “no” by the employees participating in the ballot.
The proposed ballot question also proposes action of an identified character within the meaning of s 19(1)(c) of the Act, as it involves a refusal to perform work, albeit on the condition of a refusal to allow non-compliance with the ‘media and public representation’ section of the SVHA code of conduct and SVHA national social media policy.
While the Respondent referred to the passage in Ambulance Victoria, reproduced at [15] above, where Tracey J observed “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. A breach of such a proscription cannot, in my opinion, be regarded as a departure from the customary manner of performance of an employee’s work”, I consider there is a distinction to the proposed ballot question in this matter because it refers to an actual refusal to perform work, rather than a simple non-compliance with rules, policies and contractual provisions. Tracey J observed:[10]
…Like Kaufman SDP [the minority in Re Mornington Peninsula Shire Council], 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.
Additionally, it is relevant that Ambulance Victoria involved consideration of a notice of proposed action under s.414 of the Act, where particular proposed industrial action, as opposed to proposed questions outlining possible scope of action, was being considered.
Conclusion
I am satisfied that the Applications for protected industrial action have been made pursuant to s.437 of the Act. I am also satisfied that the ANMF has, and is, genuinely trying to reach agreement.
I am satisfied therefore that the requirements of s.443(1) and (3) of the Act have been met and that, accordingly, each Order must be made.
The two protected action ballot orders will be made today which includes the questions, as amended, posed by the ANMF: PR762564 and PR762563.
DEPUTY PRESIDENT
Appearances:
Mr N Coady and Mr P Collier for the Applicants.
Ms S McCowan for the Respondent
Hearing details:
Microsoft Teams Video at 1:00PM on 25 May 2023
[1] [2022] FWCFB 204.
[2] [2010] FWAFB 526, at [19]
[3] (2014) 245 IR 375, at [23].
[4] (2011) 210 IR 419.
[5] [2014] FWC 5676.
[6] At [40].
[7] [2010] FWAFB 526, 194 IR 239.
[8] At [50].
[9] At [53].
[10] At [24].
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