Australian Nursing Federation v Mercy Hospital for Women

[2011] FWA 7834

[2011] FWA 7834

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Nursing Federation
v
Mercy Hospital for Women
(B2011/3587)

COMMISSIONER GOOLEY MELBOURNE, 10 NOVEMBER 2011

Proposed protected action ballot by employees of Mercy Hospital for Women.

[1] The Australian Nursing Federation (ANF) made an application pursuant to section 443 of the Fair Work Act 2009 (the FW Act) for a protected action ballot of employees for whom the ANF is a bargaining representative, who are employed by Mercy Hospital for Women and who are registered or enrolled nurses engaged solely or substantially in the provision of psychiatric or mental health services other then nurses to whom the Nurses (Victorian Public Health Sector ) Multiple Employer Agreement 2004-2007 applies.

[2] The matter was heard on 4 and 5 October 2011. At the hearing Mr Warren Friend SC of counsel was given permission to appear for the ANF and Mr Val Gostencnik a solicitor was given permission to appear for the employer.

[3] Mr Paul Gilbert the Assistant Secretary of the ANF’s Victorian Branch gave evidence for the ANF and Ms Karleen Edwards the Executive Director of Mental Health, Drugs and Regions Division for the Department of Health and Ms Frances Diver, the Executive Director of Hospital and Health Service Performance for the Department of Health gave evidence for the employer.

[4] The ANF and the employer are bound by the Victorian Psychiatric Services Certified Agreement 2004-2007 which has a nominal expiry date of 1 November 2011. 1

[5] The evidence established that the proposed enterprise agreement was not a greenfields agreement or a multi-enterprise agreement. 2 Further the application was made less than 30 days before the nominal expiry date of the Agreement.3

[6] The evidence established that the application was served on the employer and the Australian Electoral Commission. 4

[7] The evidence established that the ANF was genuinely trying to reach an agreement with the employer. 5

[8] The employer submitted that pursuant to section 437(5) of the FW Act there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) of the FW Act being longer than three working days.

[9] The employer proposed that in relation to some of the industrial action seven working days notice be provided. 6

[10] On 7 October 2011 I issued a protected action ballot order. I advised the parties that I would issue the orders sought by the ANF. These are the reasons for that decision.

Exceptional circumstances

[11] Both parties relied on the decision of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 7 in which Vice President Lawler summarised the meaning of “exceptional circumstances” in the context of a similar provision in earlier legislation:

“[10] ......... In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.” 8

[12] Further Vice President Lawler said:

“[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.” 9

[13] I have adopted the approach taken by Vice President Lawler.

Evidence and Submissions

[14] It was agreed by the parties that I could treat the evidence given and the submissions made in B2011/3548 as the evidence and the submissions in this proceeding. I have done so.

Conclusion

[15] The employer submitted that in determining whether there are exceptional circumstances warranting an extended notice period that regard should be had to:

• the nature of the industrial action and the nature of the business

• the importance of and the availability of the services or the activities of the employer that are to be affected by the industrial action and whether the employer is in the position of effectively a sole provider and whether services are readily available elsewhere

• whether three working days’ notice is sufficient to allow the employer to alert those affected by the impact of the industrial action

• arrangements that will need to be made by those who will not be able to access the services or whose access will be delayed 10

[16] Ms Edwards’ evidence about the impact on mental health services was general in nature.

[17] The employer sought additional notice in relation to:

• industrial action in the form of single and/or consecutive work stoppages each of up to four hours duration including such stoppages to travel for and to attend stop work meetings

• Industrial action in the form of a refusal to be redeployed from one area to another area, unless such redeployment is with the agreement of the ANF

• commencing and finishing duty at the rostered time unless overtime is approved in writing well in advance

[18] Apart from the industrial action proposed at the first dot point there is insufficient evidence before the Tribunal to enable me to be satisfied that there are exceptional circumstances warranting additional notice.

[19] At its highest, the evidence of the employer was that redeployment in mental health occurs “occasionally.” Further, it is unclear how additional notice would enable the employer to plan for the redeployment of the employers.

[20] No evidence was given about the overtime worked by employees. Given the industrial action is limited to requiring the employer to authorise the working of overtime in advance in writing it is difficult to see how additional notice would enable the employer to plan for this proposed industrial action. The evidence was that overtime must be authorised prior to an employee working overtime. 11 Ms Edwards was unable to give evidence about the impact of this ban.

[21] I am therefore unable to be satisfied in relation to the industrial action described at dot points two and three that there are exceptional circumstances justifying an extension of the notice period.

[22] The proposed industrial action set out in dot point one involves stoppages of work which could range from a short period of time or could extend to more than four hours given the stoppages can be consecutive. Therefore on one scenario there could be a stoppage of work for a lengthy period of time.

[23] No specific evidence was called about the impact of a complete stoppage of work by the employees. However I have had regard to the evidence given about the impact of the proposed industrial action in general.

[24] A complete stoppage of work would undoubtedly have a significant effect on patient care. The employer would need to plan for the stoppage of work by the employees throughout the mental health service. Given the nature of the mental health services subject of the order, the nature of the services provided, the number of patients who may be affected I have therefore concluded that in relation to this industrial action that there are exceptional circumstances which justify the written period of notice being longer than three days and I accept the submissions of the employers that the period of notice should be seven days.

COMMISSIONER

Appearances:

W Friend for the Australian Nursing Federation

V Gostencnik for the employer.

Hearing details:

2011.
Melbourne:
October 4, 5.

 1   Exhibit ANF 1 at [13]

 2   See Section 437(2) and ANF 1 at [5]

 3   See Section 438(1) and ANF 1 at [4]

 4   See Section 440 and ANF 1 at [20]

 5 See Section 443 and ANF 1 at 17

 6   Exhibit VHIA 1

 7 176 IR 4

 8   Ibid at [0]-[11]

 9   Ibid at [21]

 10   Transcript PN 375-377

 11   Ibid PN 206

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