Health Services Union v Little Company of Mary Health Care Limited T/A Calvary Health Care
[2023] FWC 2261
•8 SEPTEMBER 2023
| [2023] FWC 2261 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Health Services Union
v
Little Company of Mary Health Care Limited T/A Calvary Health Care
(B2023/946)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 8 SEPTEMBER 2023 |
Proposed protected action ballot of employees of Little Company of Mary Health Care Limited T/A Calvary Health Care
On 6 September 2023 I issued a protected action ballot order[1] following an application by the Health Services Union (HSU or Applicant) under s.437 of the Fair Work Act 2009 (Act). These are my reasons for doing so.
The application for a protected action ballot order was made by the HSU on 5 September 2023. The application related to certain employees of Little Company of Mary Health Care Limited T/A Calvary Health Care (Employer).
In response to the application, the Employer raised an objection as to the form of the questions that the Applicant proposed be put to employees in the course of the protected action ballot. Specifically, the Employer objected to the form of questions 5 (a), (d), (e) and (f) in the draft order filed by the Applicant on the basis that these questions did not ‘meet the specificity requirement(s) of s.437(3)(b) and s.443(3)(d) of the Act. Aside from this objection, the Employer did not take issue with the application.
The questions in the Applicant’s draft order to which the Employer objected were as follows:
In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by Health Services Union, Tasmania Branch members against your employer, to be taken separately, concurrently and/or consecutively, in the form of:
a.Indefinite or periodic bans on reading and responding to work emails?
[ ] Yes [ ] No
d.Indefinite or periodic action in the form of a ban on performing any duties not stated in the employee’s relevant position description?
[ ] Yes [ ]No
e.Indefinite or periodic industrial action in the form of a ban on performing work while the employee is on a break?
[ ] Yes [ ]No
f.An alteration to how you ordinarily perform work by speaking with residents, the public, and the media about industrial action, including giving them Union promotional materials?
[ ] Yes [ ]No
Submissions
The Employer submitted that the questions in a protected action ballot must be put to employees in a manner that enables those voting to make an ‘informed choice.’ The Employer relied on the decision in United Firefighters’ Union of Australia v. Country Fire Authority[2] where, in dealing with predecessor provisions in the Workplace Relations Act 1996 (Cth), a Full Bench of the Commission said:
‘In determining whether to engage in protected industrial action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances.’[3]
The Employer also referred to the Full Bench decision in John Holland Pty Ltd v. AMWU[4] where the Bench considered the proper construction of s.437 of the Act and came to the view that:
‘…all that section requires is that the questions should describe the industrial action in such a way that the employees are capable of responding to them.’[5]
The Employer’s objection to the proposed question (a) above was advanced on the basis that the question as framed described a form of industrial action that was very broad and may encompass emails pertaining to patient care arrangements or other safety considerations which would be objectionable on health and safety grounds. They urged that any resultant uncertainty for employees as to the scope of the question should be removed to make it clear that any proposed action would not extend to those matters.
A similar objection was taken to proposed question (e). The Employer said that the question should be clarified to ensure employees understood that any proposed action would be ‘subject to patient care and safety requirements.’
In relation to question (d) the Employer said that position descriptions for its nursing staff are outcome focussed and do not set out individual task-based activities. It was said that in the absence of an articulation as to what duties are proposed to not be performed, there was a failure to adequately specify ‘what work would not be undertaken and what work would remain to be done’.
The Employer objection to question (f) was twofold. First, they said the reference to ‘residents’ in the question was incorrect given that the workplace is a hospital setting and that this was likely to cause confusion amongst those to be balloted. They also submitted that the nature of the proposed action was unclear in that employees would not understand how work could be done while employees were engaged in speaking to the media.
The Applicant argued that in each case the question being posed was sufficiently clear and capable of being answered ‘yes’ or ‘no’ by those to whom the question was addressed. They submitted that in each case the action contemplated by the question was capable of constituting industrial action within the meaning of s.19(1) of the Act. The Applicant referred to and relied upon the decision of the Full Bench of the Commission in National Tertiary Education Union v. Curtin University[6] (NTEU).
Consideration
Section 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:
437 Application for a protected action ballot order
…
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
Section 443 prescribes the circumstances in which the Commission must (and must not) make a protected action ballot order and what must be specified in such an order. The section relevantly provides:
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.
As is apparent from the above, the Commission’s power to make a protected action ballot order under s.443 is not discretionary. An order must be made if the two conditions in ss.443(1)(a) and (b) have been met. In this case there is no issue that the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. I also have before me a declaration by Mr Desmond Marcenko, HSU Organiser, setting out the steps taken by the HSU in bargaining with the Employer and attesting to the fact that the HSU has been, and is, genuinely trying to reach agreement with the Employer. I am satisfied that that is the case here.
The Employer has however argued that the requirement of subsection (a) has not been met because the identified questions did satisfy not the requirement in s.437(3)(b) that the questions to be put must “specify … the nature of the proposed industrial action.” This requirement is a matter of jurisdictional fact.[7]
In NTEU, the Full Bench summarised the relevant principles for determining this question as follows:
“… 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.”[8]
The Bench also referred to the different requirements of s.437(3)(b) and ss.414(1) and (6), the latter of which deals with what must be specified in a notice of employee claim action. They did so by reference to the decision in Prosegur,[9] noting that the comparison there undertaken was between s.414 and s.443(3)(d), rather than s.437(3)(b):
“[38] … Sections 443(3)(d) and s 414(6) use different language and are concerned with different subject matters. The former provision requires specification of the nature of the ‘proposed industrial action’ in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s 414(6) requires specification of the nature of ‘the action’ - that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of the industrial action to be taken will be known to the bargaining representative. The provision’s purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(3)(d).”[10]
In my view the questions objected to by the Employer do satisfy the requirements identified in NTEU. They are capable of being responded to with a “yes” or “no” answer and they propose action of a kind capable of constituting industrial action within the meaning of s.19(1) of the Act.[11] The Employer did not argue that the proposed action in each case did not constitute such action but rather that the scope of the action proposed in the questions lacked clarity.
Questions (a) and (e) contemplate the endorsement of broad forms of industrial action not all of which may ultimately be the notified and taken as employee claim action. The Applicant indicated that they were conscious of the environment in which their members were working and that any action that might ultimately be taken would be the subject of careful consideration and proper notice under s.414. They are clearly capable of being responded to with a “yes” or “no” answer.
The Employer said that the position descriptions referred to in question (d) are those appearing in the agreement[12] which currently applies to the Employer and its employees. The submission that these kinds of descriptions are too broad and fail to adequately specify the work that would or would not be done if and when employee claim action is taken does not take account of the different levels of particularity required by s.437(3)(b) and s.414. Employees covered by an agreement are likely to be familiar with the position descriptions that apply to them such that they are capable of responding to this question which makes reference to those descriptions. I note that a question in the same terms has recently been approved in another protected action ballot application.[13]
The Applicant accepted at the hearing that question (f) should be amended to make reference to “patients” rather that “residents”. I accept that such an amendment is appropriate. I also put to the Applicant that for the sake of greater clarity the question would benefit from the inclusion of the words (and comma) “that is,” after the word “work” where it appears in the question. This was accepted by the Applicant and is consistent with the observations made by the Bench in NTEU that some adjustments can be made to the text of a question in order to more clearly express what the applicant proposes.[14] I allow these amendments to the proposed order pursuant to s.586(a). The Order that was made on 7 September 2023 reflects these changes.
Conclusion
I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[15] and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 27 September 2023.[16] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR765905.
I have amended the numbering of the Clauses six (6) to eight (8) in the Order. I have also amended the renumbered subclauses 6.3 and 7.3 to reflect the statutory obligations set out under Regulation 3.15 of the Fair Work Regulations 2009.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
[1] PR765905.
[2] (2006) 158 IR 120.
[3] Ibid at page 132.
[4] [2010] FWAFB 526.
[5] Ibid at paragraph [19].
[6] [2022] FWCFB 204.
[7] NTEU at paragraph [40].
[8] At paragraph [53].
[9] [2021] FWCFB 156.
[10] NTEU at paragraph [51].
[11] See Mornington Peninsula Shire Council v. Australian Municipal, Administrative, Clerical and Services Union[2017] FWCFB 4740.
[12] Calvary Health Care Tasmania Nursing Staff Enterprise Agreement 2020 (AG2021/5215).
[13] Health Services Union v. Uniting AgeWell Ltd [2023] FWC 392.
[14] At paragraph [55].
[15] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
[16] This is, in effect, fourteen (14) working days from the date of effect of the Order.
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