Health Services Union v Uniting AgeWell Limited T/A Uniting AgeWell

[2023] FWC 392

[2023] FWC 392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Health Services Union
v

Uniting AgeWell Limited T/A Uniting AgeWell

(B2023/115)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 FEBRUARY 2023

Proposed protected action ballot of employees of Uniting AgeWell Limited Trading As Uniting AgeWell.

1. This is an application by the Health Services Union (Applicant) made on 15 February 2023 under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Uniting AgeWell Limited T/A Uniting AgeWell (the Respondent).

1. On 16 February 2023, the Respondent advised my Chambers that it objected to the application, asserting the following:

a)some questions of the draft order accompanying the application were ambiguous and did not sufficiently specify the nature of the industrial action pursuant to s.443(3)(d) of the Act;

b)some questions did not constitute industrial action as defined by s.19(1) of the Act;

c)some of the proposed industrial action may pose risks to the health, safety and welfare of residents in facilities it operates.

1. More particularly, the Respondent asserted:

· Proposed Questions (b) and (o), which include “wearing campaign material and/or badges” and distributing information and talking to residents, the public and the media did not meet the definition of “industrial action” in s.19 of the Act because they would not directly interrupt the performance of work; and

·  Proposed Question e, which outlines a ban the performance of duties “not stated in the employee’s position description”, lacked clarity and was ambiguous.

1. I caused correspondence to be sent to the parties outlining some observations in respect of the concerns raised by the Respondent. Specifically:

· I observed that with the exception of questions (b), (e), (f) and (o) of the draft order, the proposed forms of action described in the questions were capable of constituting industrial action within the definition outlined in s.19(1), for the purposes of s.437(3)(b).

·  I noted the concerns raised by the Respondent in relation to various identified questions go to issues of health, safety and welfare but suggested it was open to the Respondent to consider its options regarding any industrial action that may be subsequently approved in a ballot and notified in the future and at that point, depending on the circumstances, it could elect to make application under s.424 of the Act if it believed suspension or termination of such industrial action was necessary;

·  I invited the Applicant to reconsider its position in relation to the wording in questions (b) and (o) and submit alternate wording;

· In relation to the wording in questions (e), I invited the Applicant to advise as to how the action described could constitute industrial action within the definition outlined in s.19 of the Act; and

· In relation to the wording in question (f), I invited the Applicant to advise how the taking breaks in full and on time would come within the definition outlined in s.19 of the Act.

1. I requested the Applicant to advise of its position in relation to Questions (b), (e), (f) and (o) and the Respondent to advise whether it sought to be heard in relation to the balance of the questions. The Respondent responded by email, advising it was prepared to consent to the application subject to the Applicant amending questions (b), (e), (f) and (o) and that it did not wish to press any objections with respect to the balance of the questions. As there were some difficulties making contact with the Applicant using the contact details it had supplied, it became apparent that it would be more efficient to proceed directly to a Telephone Mention to discuss the Application further. Following discussion at the Telephone Mention on 16 February 2023, further correspondence was received from the Applicant. In reply correspondence, I requested that the parties advise as to whether they wished to be heard further in relation to matters raised in the Applicant’s correspondence or in the material before the Commission more broadly. I also indicated that the parties could advise whether they were otherwise content for me to consider all the material now before the Commission and proceed to determine the application having regard to it.

1. Both parties responded with some additional submissions. They confirmed their positions in relation to the Application and advised they did not wish to be heard further.

Question (b)

1. Question (b) as originally submitted seeks endorsement of industrial action in the following form:

·  Indefinite or periodic industrial action in the form of wearing campaign material and/or badges?

1. The Applicant relied on the Majority Decision in the Full Bench Appeal proceeding of Australian Nursing Federation v Mornington Peninsula Shire Council[1] to submit that the wearing of campaign clothing is of itself capable of constituting a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee. The Applicant submitted that the test, based on the authority of that Full Bench Majority, is whether the action proposed is ‘capable’ of constituting a ban or whether it was ‘capable’ of constituting a different way of working than how work is customarily performed. As regards Question (b), the Applicant submitted this is demonstrably so even it is not expressed by using the word ‘ban’.

1. The Applicant did not however refer to Tracey J’s subsequent characterisation, in Ambulance Victoria v United Voice,[2] of the Full Bench Majority’s conclusion:

“In some respects, in my respectful opinion, the constructions, placed on paragraphs 19(1)(a) and (b), by the Vice President and the Full Bench majority in the ANF case, are too broadly stated.”[3]

1. Nor did the Applicant refer to the more recent Full Bench decision in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union, Australian Municipal, Administrative, Clerical and Services Union v Mornington Peninsula Shire Council (Mornington Peninsula),[4] in which the Full Bench considered a question phrased “4. Indefinite or periodic industrial action in the form of performing work while wearing campaign material and/or badges”, in the following terms:

“[38] We do not consider that any of the action described in 4 or 8 describes the nature of any industrial action. In our view is not sufficient to suggest that the corollary of performing work while wearing campaign material and badges, or while wearing casual clothes, or while not wearing a uniform or a name badge, is that there is a refusal to perform work in circumstances other than those described. We consider that the action for which approval is sought through a protected action ballot must itself describe the nature of the industrial action for which approval is sought in the question. That there will be a refusal to perform work other than in circumstances as described must in our view be expressed and not merely inferred. Indeed, the action described in 6 in the form amended, to which no objection is taken does so. It describes the action as a ban on the performance of work in clothes to which campaign materials is not attached.

[39] The action described in 4 is an “indefinite or periodic industrial action in the form of performing work while wearing campaign material and/or badges” (our emphasis). The action as described results in the performance of work and does not fall within any of the defined action found in the enumerated subparagraphs of s.19 of the FW Act. The action described in 8 of the question suffers from the same flaw in that it describes the industrial action to be in the form of wearing casual clothes. Neither of the action in 4 or 8 of the question describes any refusal to perform work or a delay in the performance of work, or the adoption of a practice in relation to work which will have that result, or a ban or limitation or restriction on the performance of work.

[40] To the extent that the Commissioner concluded to the contrary and included in the question the action described in 4 and 8, she was in error.”

1. Notwithstanding the Applicant’s view that no amendment to Question (b) was necessary, it did submit alternate wording:

“(b) An unlimited number of indefinite bans on performing work unless wearing union clothing, badges and other union campaign items?”

1. The Full Bench in National Tertiary Education Industry Union v Curtin University (Curtin University)[5] recently stated that it did not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.[6] However, the Full Bench also held:

“That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant’s intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question.”[7]

1. Having regard to the more recent and unanimous Full Bench decision in Mornington Peninsula and the Full Bench Decision in Curtin University, I consider alternate wording to what has ultimately been submitted by the Applicant for Question (b) would more clearly express what the Applicant proposes. As such, I will include in the Order I intend to make Question (b) with the following wording:

“An unlimited number of indefinite bans on performing work in clothes that are not union clothes and/or clothes to which badges and other union campaign items are not attached?”

Question (o)

1. Question (o) as originally submitted seeks endorsement of industrial action in the following form:

·  “Indefinite or periodic industrial action in the form of distributing information and/or talking to residents, the public and/or the media about the reasons for industrial action?”

1. The Applicant again submitted that that the test, based on the Majority Decision in the Full Bench Appeal proceeding of Australian Nursing Federation v Mornington Peninsula Shire Council[8] is whether the action proposed is ‘capable’ of constituting a ban etc or whether it was ‘capable’ of constituting a different way of working than how it is customarily performed.

1. The Respondent submitted Question (o) lacks specificity as to what form of action will be taken, and the term ‘alteration’ used in alternate wording submitted is ambiguous and may or may not amount to industrial action.

1. I have noted that in Ambulance Victoria v United Voice,[9] Tracey J was required to consider the following proposed industrial action:

“12. Members who are acting/appointed Team Managers and Senior Team Managers will make all response time data for available (sic) to the media without the approval of Ambulance Victoria’s Executive General Managers.”

1. His Honour concluded:

“In any event, the proposed action in this case cannot, in any relevant sense, be said to result in a restriction or limitation on or a delay in the performance of the employee’s normal duties. What is proposed is the taking of action above and beyond and outside the range of their normal work rather than the placing of a restriction on the performance of those duties. It should not be assumed or inferred that the proposed action will interfere in any way with the performance of the managers’ normal duties. In the course of any shift brief breaks can be and are taken for purposes such as informal conversations with colleagues, toileting and meals. Such breaks do not impinge on the performance of the employee’s normal duties. Communication could occur during such times without interference with normal work. It might also occur in the few seconds involved in the dispatch of an e-mail. Like Kaufman SDP, I accept that the position might be different were the proposed conduct to include express provision for a stoppage of work, even for a short period, in order for the managers to distribute data to the media. No such action has been proposed by the AEA. Section 19(1)(a) is, therefore, not engaged.

For the same reasons there is no relevant limitation or restriction for the purposes of s 19(1)(b). Furthermore, there is no “ban” for the purpose of that paragraph. As Hollingworth J held in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 105 at [34] the word “contemplates a prohibition on work, rather than a prescription to perform work in a certain way or to achieve a certain result.” Action 12 does not include any prohibition on work.”[10]

1. Notwithstanding the Applicant’s view that no amendment to Question (o) was necessary, it did submit alternate wording:

“(o) 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?”

1. Having regard to what was held by Tracey J in Ambulance Victoria v United Voice, I consider it was appropriate for the Applicant to do so and will adopt this alternate wording in the Order I intend to make. I am satisfied the result of such action could be a delay in the performance of work.

Questions (e) and (f)

1. Question (e), as originally submitted, seeks endorsement of industrial action in the following form:

·  “Indefinite or periodic action in the form of a ban on performing any duties not stated in the employee’s relevant position description?”

1. Question (f), as originally submitted, seeks endorsement of industrial action in the following form:

·  “Indefinite or periodic industrial action in the form of taking all breaks in full and on time?”

1. At the Mention, the Applicant responded to my query as to how the action described in Question (e) could constitute industrial action within the definition outlined in s.19 of the Act by advising that it is customary for the employees to be required to perform duties outside those outlined in their position descriptions. In response to my invitation to advise how the taking breaks in full and on time comes within the definition outlined in s.19 of the Act, the Applicant described circumstances in which employees are not able to take their breaks in full and on time. One example given was of employees being recalled to duty while on a break.

1. In its correspondence, the Applicant relies on John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (John Holland)[11] to submit that in most cases the drafting of the questions will be a matter for the applicant for a protected action ballot order (PABO). The Applicant submits it has used the actions outlined in Question (e) and Question (f) on several occasions without any contest since the commencement of the Act.

1. As regards Question (f), the Respondent submitted there is an inherent contradiction and ambiguity in the question.

1. The Full Bench stated in John Holland “It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions”,[12] and I have had regard to the accepted difference as to what must be specified pursuant to s 437(3)(b) in an application for a PABO and what must be specified in a notice of employee claim action under s 414(1).

1. However, I have found the explanation given by the Applicant at the Mention in relation to Question (e) to be of assistance and adopting what was outlined by the Full Bench in Curtin University referred to above in [12], I consider the alternate wording that has subsequently been submitted by the Applicant for Question (e) would more clearly express what the Applicant proposes. As such, I will include in the Order I intend to make Question (e) with the following wording:

“Indefinite or periodic action in the form of a ban on performing any duties not stated in the employee’s relevant position description?”

1. As regards Question (f), the explanation given by the Applicant at the Mention satisfies me that it describes action capable of constituting a limitation or restriction for the purposes of s 19(1)(b) and I will include Question (f) as originally submitted in the Order I intend to make.

Disposition

1. I have considered the Application form, the Statutory Declarations of Robbie Moore and Michael M. Michael, the proposed forms of Orders (as originally submitted and as subsequently altered), the submissions and information provided by the parties at the Telephone Mention and all the correspondence from the parties.

1. On the basis of the material before me, including the declaration of Robbie Moore of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met. I am also satisfied the Order I intend to make discharges the requirements of s.443(3)(d) of the Act.

1. The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore I appoint CiVS as the protected action ballot agent.

1. An order has been separately issued in PR750675. It includes Questions (b), (e), (f) and (o) amongst its Questions in the terms I have outlined above.

DEPUTY PRESIDENT

[1] [2011] FWAFB 4809

[2] [2014] FCA 1119.

[3] Ibid at [19].

[4]  [2017] FWCFB 4740

[5] [2022] FWCFB 204.

[6] Ibid at [54].

[7] Ibid at [55].

[8] [2011] FWAFB 4809.

[9] [2014] FCA 1119.

[10] Ibid at [24] – [25].

[11] [2010] FWAFB 526.

[12] [2010] FWAFB 526 at [19].

Printed by authority of the Commonwealth Government Printer

<PR750674>