Health Services Union v Western Health

[2013] FWC 7452

[2013] FWC 7452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Health Services Union
v
Western Health
(C2013/1187)

Health and welfare services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 21 OCTOBER 2013

Alleged dispute concerning the implementation of major change.

[1] On 2 August 2013 the Health Services Union (HSU) made an application for the Commission to deal with a dispute in accordance with clause 77 of the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers and Administrative Officers) Multiple Enterprise Agreement 2011-2015 (‘the Agreement’) . The matter was said to concern ‘proposed changes to the working hours and roster of two employees’.

[2] The matter was conciliated and no agreement was reached.

[3] Section 739 of the Fair Work Act 2009 (the Act) authorises me to exercise powers under the dispute settling procedure, clause 77, which includes the power of arbitration concerning clause 76. No objection to jurisdiction was taken. I am satisfied that I have the power to determine this application in arbitration. Pursuant to s.596 the HSU and VHIA (Victorian Hospitals’ Industrial Association) appeared on behalf of their members.

Evidence

[4] The HSU submitted that most of the facts of the matter are not in dispute 1. It did not lead any evidence. The employer led evidence from:

• Ms Susan Craven



• Ms Kate Hunt

Authorities

[5] In Amcor Limited v Construction Forestry Mining and Energy Union 2Gleeson CJ and McHugh J in a joint judgement said:

“The issue in these appeals is whether, following a corporate reorganisation described as a demerger, certain employees became entitled to redundancy payments under the provisions of an industrial agreement. The employees worked in the same jobs, under the same terms and conditions, following the demerger, but, in consequence of the corporate restructuring, their employer changed.

The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation.” 3

[6] In Kucks v CSR Limited 4 Madgwick J said:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[7] I have had regard to all the submissions and evidence.

Decision

[8] It is agreed that the Western Health Care Network Organisational Change Agreement 1996 does not operate as a term of the agreement. Western Health asked that limited consideration be had to the document 5, something opposed by the HSU.

[9] Subject to that, the question now before me is that of whether or not the employer complied with clause 76 ‘Change’ of the agreement. The HSU submits that Western Health has not complied with that clause, while Western Health contends that it has. A second issue relates to part-time employment.

[10] Western Health submits that it complied with the requirement in clause 76.4 that it provide written materials concerning specified matters by providing a written Change Impact Statement in May 2013 6 to Mr.Dean Sherriff, HSU Industrial Organiser.

[11] The HSU has not identified any defect in the notice itself. However, it submits that ‘union delegates and health and safety representatives’, ‘union delegates’, and ‘union representatives’ 7 have not been consulted as required. It also submits that ‘affected employees’ include the ‘destination point work groups and those affected indirectly by impacts on those designated work groups’8. Finally, it submits that part-time employees should have reasonably predictable rosters in accordance with the agreement.

Employee and Union Representatives

[12] Clause 76.2 provides that the employer must consult with ‘Employees, the local representatives of the union and the HSU’ before the introduction of change. Clause 76.3 provides that discussions are to take place with the ‘affected Employees, their union representatives at the workplace and the HSU’. Clause 76.4 provides that certain information shall be provided in writing to ‘the affected Employees and their union representatives’.

[13] The HSU directed how Western Health was to serve the Change Impact Statement, and Western Health complied with those directions 9. The 2 May 2013 Change Impact Statement was sent by email to Mr.Dean Sherriff on 2 May 2013. The proposals were discussed at a meeting between Ms.Kate Hunt, Manager Clinical Coding and Transcription Services, Ms Dianne Marshall, and the HIS staff at Williamstown Hospital10. Following that considerable discussion and negotiation between the HSU, employees, and Western Health has taken place about the proposal contained in that document.

[14] On 12 July 2013 Western Health provided the HSU with a revised Change Impact Statement. The HSU proposed amendments to the document on 15 July, a meeting was held on 17 July between the HSU and Western Health, and a final revised version of the Change Impact Statement was provided to the HSU officials or employees on 17 July by email 11.

[15] Have the required union representatives been consulted and provided with information as required by clause 76?

[16] Firstly, it is conceded that Western Health has met the requirements of clause 76 with respect to the HSU 12. I would have reached that conclusion in any event, having regard to for example rule 9.2 of the Fair Work Rules, which set out how service is to be effected.

[17] Secondly, have local representatives been provided with the change documents 13 and then consulted as required? In relation to the change documents, the HSU directed how Western Health was to serve the Change Impact Statements, and Western Health complied with those directions14. On the evidence before me the HSU acted in a representative capacity for employees and local representatives15, whether in Commission proceedings or discussions with the employer. The change documents were properly served.

[18] In relation to consultation with local representatives, as Western Health submitted, the phrase ‘union representatives at the workplace’ is a broad one and could include affected staff, a delegate, or someone else 16. It could include someone employed with the HSU, if that was the decision of employees. In this case individual employees have been acting as local representatives for the collective purpose of this dispute, or acting as such in combination with various other HSU representatives17. Local employee views have been conveyed to the employer through various means, and with some occasional vigour. On the evidence before me local representatives have been consulted as required.

[19] In any event, the HSU acted as the collective representative of employees as an independent registered organisation, and in so acting organised discussions and representatives. It is axiomatic that registered trade unions must be genuine and ‘free from control by, or improper influence from, an employer’ 18. The HSU selected its representatives and Western Health quite properly acted on the basis of this selection. Western Health accordingly met on 8 occasions with the HSU and affected employees, and with 6 different people from the HSU, including the North Western Organiser. Western Health has never been provided with the names of any alleged HSU representatives in the workplace, and has never refused to meet with any representative nominated by the HSU. The HSU has not asked to include any other local delegates or representatives in these meetings19. The North Western Organiser appears on the evidence to be a ‘local’ representative. There has been no lack of substantive consultation at the local level, and as we see some real change to the employer proposals has occurred. The employer was persuaded to abandon rotating shifts for part-time employees.

[20] In my view it would not be appropriate to adopt a technical approach to the clause which would make its practical operation extremely difficult or impossible in some circumstances, for example where a union wished to prevent or seriously delay change by withholding the names of its representatives or providing representatives but deliberately avoiding consultation with local representatives. This is far from the consultation contemplated in the test cases which developed such clauses. It would be a narrow and pedantic approach which resulted in the inconvenience or injustice that Kucks suggests should be avoided. The approach that I have adopted avoids these difficulties.

[21] I am satisfied that the requirements of clause 76 concerning union representatives have been met.

Affected Employees

[22] Firstly, the HSU submits that ‘destination point work groups and those affected indirectly by impacts on those designated work groups’ 20 are also persons significantly affected by the proposed changes, and entitled to consultation and provision of information pursuant to clause 76. Clause 76.2 provides that consultation requirements arise with respect to changes which ‘are likely to have a significant impact on Employees ...’. The HSU submissions do little more than raise the possibility of “different surroundings which create occupational health and safety issues in terms of change” and various forms of personality clash arising within the destination point work groups, and are somewhat vague21. There is little or no evidence to justify any finding of significant effects.

[23] At best the effect would be no different to effects which arise on a relatively common basis. It is open to the parties to an agreement to require consultation on relatively common or ordinary change issues, rather than changes with a ‘significant effect’, but such a clause would be substantially different in nature to the clauses that emerged from Commission test cases 22, such as the present agreement clause. The HSU submissions would defeat the clear intention to limit the circumstances in which consultation is required, as interpreted for example by the High Court23 and industrial tribunals.

[24] Secondly, the HSU acted as the collective representative union for affected employees at all times. It was at liberty to raise such concerns as it wished about all persons likely to be affected. There has been no denial of the opportunity for the HSU to consult about and advance the interests of employees transferred or at the destination point. The HSU chose to raise certain matters, and involve certain persons, and the employer accepted that choice and consulted with such persons as the HSU nominated which included 6 different people from the HSU. The HSU as the representative union defined by its actions who the affected employees were, and while it is at liberty to reconsider its actions I see no reason on the material before me to doubt its decisions.

[25] I am not satisfied on the material before me that persons other than the 5 employees who will be transferred from Williamstown to Sunshine and Footscray are affected employees within clause 76. I am satisfied that the requirements of clause 76 concerning affected employees have been met.

Genuine Consultation

[26] Have the discussions that have taken place met the consultation requirements in clause 76? This is not in issue in these proceedings. I would have found to that effect in any event: Austin Health v. HSU 24, and other decisions.

Conclusion Regarding Clause 76

[27] I determine that Western Health has complied with clause 76.

[28] In the alternative, in the circumstances I would make no determination of a remedy. Western Health has made reasonable, and more, endeavours to engage with the HSU and its members and to take into account employee concerns, consistent with the terms and objectives of clause 76.

Part-Time Employees

[29] Both sides are now in agreement that part-time employees who are transferred should have reasonably predictable rosters consistent with the requirements of clause 81. This is one of the benefits of a consultation process such as provided in clause 76. The HSU and employees expressed their concern about an earlier proposal for rotating rosters, and Western Health has quite properly taken that concern into account and now agrees with the HSU and employees on the issue.

[30] I am happy to determine by consent that consistent with the requirements of clause 81 reasonably predictable rosters for part-time employees should be put in place.

[31] I have ordered the file be closed in PR543448.

DEPUTY PRESIDENT

Appearances:

Mr D Sherriff and Mr P Lazarevski of the Health Services Union of Australia

Mr S McCullough of the Victorian Hospitals’ Industrial Association and Ms A Pepper of the respondent

Hearing details:

2013

Melbourne

27 September

Attachment A: Clause 76 Consultation Regarding Major Workplace Change

Clause 76 provides:

76. Consultation regarding major workplace change

76.1 Any Employer with an existing organisational change agreement (however titled) with the Union that is reduced to writing will continue to apply the terms of that Agreement as though they were terms of Section 3. An Employer without such an agreement will, as a minimum, apply the following procedure.

76.2 Where an Employer has made a definite decision to implement major changes in its program organisation, structure or technology that are likely to have a significant impact on Employees, the Employer shall, as early as practicable, consult with Employees, the local representatives of the union and the HSU, before the introduction of any proposed changes.

76.3 The Employer shall discuss with the affected Employees, their union representatives at the workplace and the HSU, amongst other things:

76.3.1 the introduction of changes that are likely to have significant effect on Employees;

76.3.2 the effects such changes are likely to have on Employees; and

76.3.3 the reasons for any proposed redundancies and measures to avert or mitigate adverse effects of such changes on Employees.

76.4 For the purposes of such discussion, the Employer shall provide in writing to the affected Employees and their union representatives:

76.4.1 all relevant information about the changes, including the nature of the changes proposed;

76.4.2 reasons for any proposed redundancies and the number of Employees and categories likely to be affected; and

76.4.3 the expected effects of the changes on Employees and other matters that may impact on them, provided that the Employer is not required to disclose confidential information, the disclosure of which would be contrary to the Employer’s interests.

 1   HSU Reply Submissions, paragraph 2 ‘Agreed Facts’

 2 [2005] 222 CLR 241

 3   Ibid, paras 1 and 2

 4 (1996) 66 IR 182 Madgwick J

 5   Western Health Submission, paragraphs 5-19

 6   Witness Statement of Susan Craven, Attachment SC1

 7   HSU Submission, paragraphs 13, 15, 16, 17

 8   HSU Reply Submission, paragraph 18

 9   PN69

 10   Witness Statement of Kate Hunt, paragraph 6; Witness Statement of Susan Craven paragraph 6

 11   Witness Statement of Kate Hunt, paragraph 26-27; Attachment KH4

 12   PN117

 13   PN122

 14   PN69

 15   Witness Statement of Susan Craven, Attachment SC2; PN161-162

 16   PN161

 17   Witness Statement of Susan Craven, Attachment SC2; PN161-162

 18 Section 19(1)(a) and (b) of the Fair Work (Registered Organisations) Act 2009

 19   Witness Statement of Kate Hunt, paragraph 34

 20   HSU Reply Submission, paragraph 18

 21   PN142-143

 22   Termination, Change and Redundancy Test Case, (1984) 8 IR 34; (1984) 9 IR 115

 23   Federated Clerks’ Union v. VEF (1984) 154 CLR 472 at 500, per Wilson J, part of the majority.

 24   [2008] AIRC 77 at 57

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