Australian Nursing and Midwifery Federation v Wesley Mission Queensland Limited
[2025] FWC 749
•17 FEBRUARY 2025
| [2025] FWC 749 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Nursing and Midwifery Federation
v
Wesley Mission Queensland Limited
(B2025/190)
| COMMISSIONER SPENCER | BRISBANE, 17 FEBRUARY 2025 |
Proposed protected action ballot of employees of Wesley Mission Queensland Limited (New Employer) – a change of employee cohort to be covered in the proposed agreement – whether bargaining - a relevant transfer of business had occurred, change of employer entity name and transfer of employees – notification time
Introduction
This is an application by the Australian Nursing and Midwifery Federation (ANMF/Union), made under s 437 of the Fair Work Act 2009 (the Act) on 29 January 2025, for a protected action ballot order (PABO) in relation to the employees of the Respondent – Wesley Mission Queensland Limited (the Employer/Respondent/New Employer/New Entity/Current Employer).
The ANMF is a bargaining representative of nurses and personal carers employed by the Respondent at Hummingbird House, a private children’s hospital. The ANMF filed in the Commission and served on the Respondent a Form F34 PABO application, draft order and Form F34B Declaration in support of an application for a PABO. A day later, the ANMF filed in the Commission and served on the Respondent an Amended F34 PABO application. The application for the PABO was contested between the parties and this decision relates to those matters in dispute only. All other legislative criterion in section 437 of Act were considered to have been met.
The Applicant provided that in regard to the employees to be balloted that:
“In accordance with section 437(5) of the Act the group of employees to be balloted are employees who are a nurse or a personal carer employed by Wesley Mission Queensland Limited who work at Hummingbird House, a private hospital, who are members of and are entitled to be industrially represented by the Applicant for this protected action ballot order, who are represented by the Applicant as their bargaining representative, and who will be covered by the proposed (by the Applicant) enterprise agreement.”
In relation to the Respondent, in October 2024 there was a transfer of business from the Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland (Previous Entity/Old Employer/Old Entity) to the Respondent, Wesley Mission Queensland Limited. The employees employed by Old Employer who were covered by the below enterprise agreements, transferred employment to the current employer, namely the Respondent.[1]
The Applicant provided that the existing enterprise agreements that cover the employees are:
1. Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013; and
2. Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018.
Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 had a nominal expiry date of 30 June 2016. This agreement was made with the Old Employer and covered employees engaged in nursing roles.
The other agreement, Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 had a nominal expiry date of 30 September 2021. This agreement was made with the Old Employer and covered employees engaged in care and support roles.
Both agreements outlined above covered the Old Employer. The nursing roles were covered by a separate agreement to the carer roles. After the transfer of the business, the Union has sought this PABO in relation to the currently proposed, “standalone” agreement with the Respondent/New Employer to cover both nursing and carer roles, in relation to Hummingbird House.
The application was brought on at the available time of 8:30am on the day after the amended application was provided. The Respondent only provided submissions late in the evening of the day that the amended application was provided, on the issue of legal representation and the extended period of written notice that was sought for industrial actions.
The Applicant was represented by Mr Kevin Crank, Industrial Officer of the Union.
The Respondent sought to be legally represented by Ms Deanna McMaster, Partner of MinterEllison Solicitors. The Union objected to the Respondent being legally represented and submissions were heard in relation to this matter.
After hearing submissions, permission was granted pursuant to section 596(2)(a) of the Act for the Respondent to be legally represented as the matter had some complexity in terms of the matters in contest between the parties and given the matter was brought on quickly. Mr John Cosgrove, the General Manager - Employee and Industrial Relations, appeared with the Respondent solicitors.
Background
In accordance with section 437(5), the group of employees to be balloted are the employees who are nurses or personal carers employed by the Respondent/New Employer, Wesley Mission Queensland Limited who work at Hummingbird House. They are members of and are entitled to be industrially represented by the Applicant for this PABO, who are represented by the Applicant as their bargaining representative, and who will be covered by the proposed enterprise agreement.
The parties agreed the other threshold statutory matters had been satisfied. The Union as a bargain representative had standing to apply for the protected action ballot order pursuant to section 437. However, the following matters as set out below were contested between the parties.
There were several objections raised by the Respondent in regard to the Applicant’s application in this matter, these included that bargaining had not occurred with the New Entity and further the Respondent argued that there had not been a ‘notification time’. It was noted by the Respondent that a Notice of Employee Representational Rights (NERR) and bargaining had occurred with the previous employer but not with the New Entity after the transfer of business had taken place. Further, it was argued that the Applicant could not satisfy that they were genuinely trying to reach an agreement. However, this latter objection was not pressed by the Respondent when the matter was brought on. This decision will therefore focus on the former objection, namely whether there was a ‘notification time’ as required by section 437(2A).
The Applicant recognised that if there was not a ‘notification time’ in relation to the proposed agreement that this would be fatal to their application, however it was submitted that there had been a notification period as set out below. The Applicant relied on four meetings they had with the New Entity/Respondent, including two by exchange of email regarding the proposed nature of the agreement.
As above at paragraph [2], in accordance with section 437(6), the application was accompanied by the required documents and information, which was also served on the Respondent.
Submissions were received in relation to the above matters. One witness statement was provided by the Union by Ms Kanchana Liyanapathiranage, Industrial Officer. Another witness statement was provided by the Respondent by Ms Whittaker, General Manager of Hummingbird House and Hopewell Hospice.
There was not a dispute over the questions to be put to the employees who are to be balloted including the nature of the proposed industrial action nor was there a dispute or objection to the name of the person or entity that the applicant wished to be the protective action ballot agent for the protected action ballot.
Confirmation was sent to the parties after the hearing that the order would not be granted, and reasons would be provided. The reasons are now set out in this decision.
Relevant Legislative Provisions
The relevant legislative provisions were sections 437, 173(2) and 443 of the Act:
“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 cooperative workplace 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; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(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.”
…
173 Notice of employee representational rights
Employers for single‑enterprise agreements to notify each employee of representational rights
(1) An employer that will be covered by a proposed single‑enterprise agreement (other than a greenfields agreement) must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(aa) the employer receives a request to bargain under subsection (2A) in relation to the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a supported bargaining authorisation in relation to the agreement that specifies the employer comes into operation; or
(e) a single interest employer authorisation in relation to the agreement that specifies the employer comes into operation.Note: An employer that is required to give a notice under subsection (1) cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
(2A) A bargaining representative of an employee who will be covered by a proposed single‑enterprise agreement (other than a greenfields agreement) may give the employer who will be covered by the proposed agreement a request in writing to bargain for the proposed agreement if:
(a) the proposed agreement will replace an earlier single‑enterprise agreement (the earlier agreement) that has passed its nominal expiry date; and
(b) a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement; and
(c) no more than 5 years have passed since the nominal expiry date; and
(d) the proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given.
…
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;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(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.
(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 or 120 hours (whichever is applicable), 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.”
Application for Period of Written Notice to be Extended
The Respondent’s Witness Statement predominantly dealt with the extended notice period for industrial action for which the Respondent sought a period of five working days pursuant to section 443(5) of the Act. This extended period was on the basis of the nature of the business and the care of the patients, mostly children, in Hummingbird House. Given the outcome in relation to other matters, it has not been necessary to determine this issue.
Submissions in Relation to Bargaining and Notification Time
The Respondent submitted that bargaining had not commenced and there was a dispute whether ‘notification time’ in relation to the enterprise agreement said to be proposed by the Applicant as required by section 437 of the Act. The Respondent contended that while previous discussions were completed by a different corporate entity/Old Entity, that bargaining had not yet formally commenced in relation to the New Entity/Respondent as a result of the transfer of business. In addition to this, the NERR issued by the Old Entity was solely in relation to nurses (and not carers roles). The Respondent stated that the effect of the relevant legislative provision is that it must be the current employing entity that also issues the NERR. That had not been done. The ‘notification time’ had also not commenced in this matter which necessarily, as per the relevant legislation set out above, precluded a protective action ballot order.
Additionally, the Respondent submitted that while the ‘notification time’ would need to commence with the New Entity/Respondent, that there is also the need to have attempts at bargaining with New Entity/Respondent before a PABO Application can be satisfied.
The Applicant submitted that there has been a ‘notification time’ in relation to this matter, and that unlike the submissions of the Respondent, that under s 173(2) of the Act, that the issuing of the NERR is a not necessary to make a finding that the ‘notification time’ has occurred. The Applicant conceded that a NERR had not been issued by the New Entity/New Employer but this was not mandatory for the making of a PABO. The Applicant raised that the parties had engaged in bargaining after the transfer of business. Mr Crank stated that bargaining had continued on 19 November 2024, 28 November 2024, and 5 December 2024. However, some of these instances of bargaining referred to were exchanges of correspondence regarding the commencement or form of bargaining.
Further, the Applicant submitted that there was a ‘notification time’ in February 2024 with the prior corporate entity. In the alternative, the Applicant contended that there was a ‘notification time’ on 8 October 2024 where it was stated by Mr Cosgrove that:
“Please provide further information regarding your email below. WMQ disagrees with this statement, “management’s lack of focus on the bargaining process,” as discussions have continued, including an offer to your members.
WMQL must issue the new NERR due to the change from WMQ to WMQL.”
Whereas, Ms McMaster for the Respondent, asserted that in relation to the 8 October 2024 correspondence that the email itself provides that the NERR needs to be reissued. It was accepted by the Respondent that the NERR is different to bargaining, but at that point it was not just scope matters that were outstanding[2]. If this was the case, as per the Note to section 437(2A), this would not prevent an assessment that bargaining was occurring. It was clear as per section 173(2), the criteria for ‘notification time’ had not been meet as New Employer/Respondent had not agreed to bargain for the agreement and had not initiated bargaining for the Agreement.
Consideration
As per section 173 (2)(a), the ‘notification time’ is when the employer agrees to bargain, or initiates bargaining, for the agreement. The Respondent argued as per section 173 (2) (aa) that the New Employer received a request to bargain under subsection (2A) in relation to the agreement, however, this request to bargain under section 173(2A) is only relevant to commencing the ‘notification time’ if the conditions in section 173 (2A) are met. The current circumstances have not met with all of these linked conditions in section 173 (2A) (a), (b), (c) and (d). That is, the proposed agreement will not replace an earlier single enterprise agreement that has passed its nominal expiry date, a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement, no more than 5 years have passed since the nominal expiry date, and, the proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.
This PABO matter was complicated by the transfer of business, as the Respondent/New Employer argued that this gave rise to a ‘notification time’ issue. The Respondent/New Employer set out that under section 437(2A), discharging the ‘notification time’ is a mandatory requirement.
The parties agreed that whilst the matter of scope of the proposed agreement was not settled between the parties, the scope of the agreement was not a factor to be determined against section 437.
As conceded by the Respondent, a ‘notification time’ occurred with the previous employer in February 2024 and bargaining discussions had occurred then. Importantly, as submitted by the Respondent, the NERR that was issued by the Previous Entity/Old entity, only related to nurses, and not carers. It was agreed by the parties that what was currently under consideration in terms of the proposed agreement was the coverage of both nurses and carers. Therefore, the Respondent emphasised that at no point, including with the previous employer, had bargaining commenced for the ‘carer’ cohort and for these reasons any prior ‘notification time’ could not currently be relied on.
On the material before the Commission in relation to this application, the employing entity had not yet commenced bargaining or commenced the ‘notification time’. On this issue however the Respondent’s legal representative emphasised that they wanted to communicate that whilst they were arguing a technical but necessary point, the Respondent’s intention was that they were committed by mid-February to issue the NERRs, one for nurses and one for carers. Further, the Respondent added that they were committed to commencing bargaining meetings with the correct employing entity.
In the witness statement of Ms Liyanapathiranage, an industrial officer on behalf of the Union, it was stated that on or about 1 October 2024 the employment of the employees to be balloted under the proposed order sought in this matter was transferred from the Old Employer to the New Employer.
It was set out that the Union stated attempts were made to propose a bargaining meeting. The Union stated they expressed concerns about Management’s lack of focus on the bargaining process. The Employer denied the statement regarding management’s lack of focus on the bargaining process. Mr John Cosgrove, the General Manager - Employee and Industrial Relations for the New Employer, stated that the Union’s correspondence for bargaining, had only been received by the New Employer. Mr Cosgrove had stated that there was a need for the New Employer to issue a new NERR due to the transfer of business and in regard to the change by the Union; from bargaining for a proposed agreement previously where the coverage had only been in relation to nurses and was now to also include carers. There was a meeting between the Union and the New Employer/Respondent on 19 November 2024. At that meeting, on 19 November 2024, Ms Liyanapathiranage set out that the Union proposed a separate “standalone agreement” for Hummingbird House and for ANMF members (nurses and carers) working at Hummingbird House. That is, it was communicated that the new proposed coverage of the new agreement departed from the coverage of the prior agreement as it was proposed to not only cover nurses but also carers. The coverage was proposed for a “standalone agreement” with New Employer/Respondent for those two groups working at Hummingbird House.
The Respondent submitted that they were considering a separate schedule to cover Hummingbird House to an enterprise agreement. Based on the exchanges of correspondence and the meeting on 19 November 2024, the Union submitted that they were genuinely trying to reach an agreement with the New Employer.
The Employer had made it clear that they considered that due to the transfer of business resulting in the name change they must issue a New NERR for the new group of employees and the new proposed coverage. The Respondent’s legal representative, Ms Deanna Mcmaster, considered that resolving these issues were relevant to the approval of any agreement that may arise from the bargaining process but also relevant to the ‘notification time’. It was proposed that the new “standalone agreement” for Hummingbird House was to cover a separate group of employees, being nurses and carers, which had not been the subject of the previously proposed agreement with the Old Employer.
The following extracts on the Statement of Principles on Genuine Agreement[3] are included:
“Informing employees of bargaining for a proposed enterprise agreement Informing employees of their right to be represented by a bargaining representative
1.The employer should ensure that employees of the employer who will be covered by a proposed enterprise agreement and are employed at the notification time for the agreement (as defined in section 173(2) of the Fair Work Act) are informed:
a.that the employer is bargaining for an enterprise agreement and of the proposed coverage of the agreement, and
b.of the employees’ rights to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice, and how to exercise those rights
at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement.
2.Where section 173(1) of the Fair Work Act applies to the employer in relation to a proposed enterprise agreement, the employer will be taken to satisfy paragraph 1 if, subject to paragraph 3, the employer gives a notice of employee representational rights in accordance with sections 173 and 174.” [4]
This provides further support that the ‘notification time’ was not discharged in the current circumstances.
Conclusion
The bargaining with the New Employer/Respondent was now to be for a separate enterprise agreement to cover a different group of employees distinct from any bargaining discussions with the Old Employer.
These contested matters relevant to section 437 whilst categorised by the parties as ‘technical matters’, it was acknowledged that satisfaction of section 437 (2A) provides a mandatory step to be resolved in relation to a section 437 application. That is per section 437 (2A), “Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.”[5]. The correct Employer’s name, as a result of the transfer of business and the new group of employees (now including nurses and carers) to be covered by the proposed PABO must be confirmed in relation to the ‘notification time’ under section 437. In the changed circumstances past bargaining or the ‘notification time’ prior to the change in the coverage for the proposed enterprise agreement and the change in the Employer’s name cannot be relied on. It is recognised that 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 as per section 173(2)).
The matters set out, there were in contest are not discretionary issues. Accordingly, for the reasons set out above, the application cannot satisfy the legislative requirements in relation to the ‘notification time’ as per section 173 (2) and section 437 (2A). It is noted however, that the Respondent is committed to remedying a range of these legislative hurdles to commence bargaining with an endeavour to reach an Agreement that they anticipate will align with the proposed coverage of the Union’s required agreement.
As earlier advised to the parties, the PABO cannot be granted, and the application must be dismissed. I Order accordingly.
COMMISSIONER
[1] Wesley Mission Queensland Limited [2024] FWC 2666, [1]-[3].
[2] Stuartholme School v Independent Education Union of Australia[2010] FWAFB 1714; (2010) 192 IR 29 at [21] – [25].
[3] Fair Work Commission, Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (6 June 2023).
[4] Ibid [1]-[2].
[5] Fair Work Act 2009 (Cth) s437(2A).
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