Australian Nursing Federation v Primary Care Connect

[2011] FWA 7698

[2011] FWA 7698

FAIR WORK AUSTRALIA

DECISION

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

Australian Nursing Federation
v
Primary Care Connect
(B2011/3570)

COMMISSIONER GOOLEY MELBOURNE, 7 NOVEMBER 2011

Proposed protected action ballot by employees of Primary Care Connect.

[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 Primary Care Connect and who are midwives, registered or enrolled nurses other than mental health nurses whose employment is regulated by the Victorian Psychiatric Services Certified Agreement 2004-2007.

[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 Nurses (Victorian Public Sector) Multiple Employer Agreement 2004-2007 (the Agreement) 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.

[15] Relevantly Ms Diver gave evidence that the bans on bookings and referrals by radiology nurses, outpatient nurses, post-acute care nurses, hospital in the home nurses, HARP nurse and district nurses will affect the scheduling of patients and may result in delayed diagnosis and treatment. Such delays may result in increased stress and anxiety for patients, particularly where patients have an undiagnosed condition. It was her evidence that the provision of additional notice of bans will enable ... health services to contact patients, provide reassurance, reschedule available resources and reprioritise the most urgent cases. 10

Conclusion

[16] 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 11

[17] Yet in relation to this employer, the witnesses called by the employer did not provide any information about the services provided by the employer. Nor did they provide any evidence about the importance and availability of the services provided by the employer.

[18] Further no evidence was called about any difficulties that would be faced by the employer in alerting its clients of the proposed industrial action. There was little evidence about how having additional time would, other than in the most general terms, assist the employer.

[19] On the evidence before the Tribunal I am unable to be satisfied that there are exceptional circumstances warranting an extension of time.

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 [3]

 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   Exhibit VHIA 3

 11   Transcript PN 375-377

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