[2016] FWC 8914

FAIR WORK COMMISSION

REASONS FOR DECISION

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

CPSU, the Community and Public Sector Union
v
Australian Health Practitioner Regulation Agency T/A AHPRA
(B2016/1263)

COMMISSIONER JOHNS

MELBOURNE, 14 DECEMBER 2016

Proposed protected action ballot of employees of Australian Health Practitioner Regulation Agency.

[1] On Thursday, 1 December 2016, the Community and Public Sector Union (CPSU/applicant) made an application for a protected action ballot order in relation to a group of employees of the Australian Health Practitioner Regulation Agency (AHPRA/respondent).

[2] The application was made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The respondent was served with the application within 24 hours after the making of it in the Fair Work Commission (Commission).

[4] Section 441 of the Act mandates that the Commission must, as far as practicable, determine an application for protected action ballot order within 2 working days after the application is made.

[5] Consequently the matter was listed for hearing and was determined on Monday, 5 December 2015. These are the reasons for the decision issued in transcript.

[6] The employees to be balloted are presently covered by the following agreements (Agreements):

● Australian Health Practitioner Regulation Agency Enterprise Agreement (NSW) 2013-2016;

● Australian Health Practitioner Regulation Agency Enterprise Agreement (TAS) 2014-2016;

● Australian Health Practitioner Regulation Agency Enterprise Agreement (SA) 2013-2016;

● Australian Health Practitioner Regulation Agency Enterprise Agreement (ACT, NT, Vic, WA) 2014-2016; and

● Australian Health Practitioner Regulation Agency Enterprise Agreement (QLD) 2014-2016.

[7] The nominal expiry date of the Agreements is 30 June 2016.

[8] On 2 December 2016, Ms Sarndrah Horsfall, Executive Director, Business Services of AHPRA emailed the applicant advising that AHPRA would consent to the orders, if the following variations were made to the applicant’s proposed order:

● “Part 7: AHPRA does not consent to the proposed industrial action set out in part 7. The description of the proposed industrial action is unclear. Please amend this part of your application immediately to state the nature of the proposed industrial action and provide a copy for our review as soon as possible. Alternatively, please delete the proposed industrial action in paragraph 7 of Schedule A of the application.
● Part 10: The proposed wording is untrue and we invite you to consider an alternative form of wording.
● Part 12: AHPRA requests the following qualification be inserted to part 12 “except in the case where it is in the public interest to do so”.
● Part 14: AHPRA requests the following qualification be inserted to part 14 “save that no signage or messages will be placed that contain profane, offensive or distasteful language or slogans.”
● Part 17: AHPRA requests the following qualification be inserted to part 17 “except in the case where it is in the public interest to do so or failure to respond would pose a risk to the health and safety of AHPRA’s employees”
● Part 19: AHPRA requests the following qualification be inserted to part 19 “except in the case where it is in the public interest to do so or failure to attend would pose a risk to the health and safety of AHPRA’s employees”
● Part 23: AHPRA requests the following be deleted from part 23 “Practitioners, new registrants and renewals”.”

[9] On that same day, Mr Will Wyatt, Industrial Organiser for the CPSU, replied to the respondent’s email advising that the CPSU would not adopt any of the variations proposed by AHPRA.

[10] On 2 December 2016, the parties were directed to simultaneously file and serve submissions, witness statements and any documents in support of their respective positions by 12:00pm Monday, 5 December 2016. Neither party complied with the Directions.

[11] The matter was listed for hearing at 4:30pm Monday, 5 December 2016.

[12] At 3:30pm Monday, 5 December 2016, Ms Horsfall, on behalf of AHPRA emailed the Commission to advise that AHPRA wold not be appearing at the hearing later that day. Consequently the respondent made no submissions in support of the proposed variations.

[13] At the hearing Mr Will Wyatt appeared for the CPSU, he was accompanied by:

● Mr Andrew Munro the CPSU AHPRA delegate; and

● Mr M Cronin also from the CPSU.

[14] At the hearing, following an exchange with me, the applicant agreed to amend question 10 of the proposed order, to insert “I feel” between the words “because” and “my”.

[15] Having regard to all that had been put in relation to this matter. The Commission, as presently constituted, was satisfied that the requirements of subsection 443(1) of the Act had been met, including that the applicant has been and is genuinely seeking to reach an agreement with AHPRA. Accordingly, an Order had to be made.

[16] The Order [588469] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

W, Wyatt for the Community and Public Sector Union

A, Munro, CPSU AHPRA delegate

M Cronin for the Community and Public Sector Union

Hearing details:

5 December

2016

Sydney, Melbourne

Printed by authority of the Commonwealth Government Printer

The matter before the court was a dispute between the Community and Public Sector Union (CPSU) and the Australian Health Practitioner Regulation Agency, also known as Ahpra. The union sought to conduct a ballot of its members for the purpose of determining whether to take protected action, including a strike. The agency opposed the ballot, arguing that it would be unlawful as it would affect the agency's ability to perform its functions in relation to the regulation of health practitioners. The dispute was heard in the Fair Work Commission, the industrial relations tribunal in Australia.

The central legal issue before the tribunal was whether the proposed ballot, and any subsequent protected action, would interfere with the agency's ability to perform its functions in a way that would be unlawful. The tribunal considered the nature of the agency's functions, the potential impact of the proposed action on those functions, and the provisions of the Fair Work Act which govern industrial action by public sector employees. The union argued that the proposed action would not significantly interfere with the agency's functions, while the agency contended that even a temporary disruption would be unlawful.

The tribunal found that the agency's functions were of such a nature that any interruption, even if temporary, would have a significant impact on the public interest. The tribunal held that the proposed action would interfere with the agency's ability to regulate health practitioners effectively, and therefore would be unlawful. The union's application to conduct the ballot was dismissed. In reaching its decision, the tribunal considered the potential impact of the proposed action on the public interest, as well as the provisions of the Fair Work Act which govern industrial action by public sector employees.

The tribunal's decision was final and binding, and the union's application to conduct the ballot was dismissed. The agency was entitled to an injunction preventing the union from taking any protected action that would interfere with its functions. The union was also ordered to pay the agency's costs of the proceedings. The decision highlights the importance of considering the potential impact of industrial action on public sector functions, and the need for careful consideration of the provisions of the Fair Work Act when determining the lawfulness of such action.

CPSU, the Community and Public Sector Union v Australian Health Practitioner Regulation Agency T/A Ahpra

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established