HSU v Victorian Institute of Forensic Mental Health

[2012] FWA 4633

[2012] FWA 4633

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Victorian Institute of Forensic Mental Health
(B2012/112)

And

Health Services Union
v
Albury Wodonga Health (Wodonga Campus); Alfred Health; Austin Health; Ballarat Health Service; Barwon Health; Beechworth Health Service; Bendigo Healthcare Group Inc; Eastern Health; Goulburn Valley Health; Latrobe Regional Health; Melbourne Health; Mercy Public Hospitals’ Inc; Mildura Base Hospital; Northeast Health Wangaratta; Peninsula Health; Royal Children’s Hospital; South West Healthcare; Southern Health; St Vincent’s Hospital (Melbourne) Limited
(B2012/113)

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 12 JUNE 2012

Proposed protected action ballot by employees of mental health service providers.

Introduction

[1] This matter involves separate applications (the Applications) by the Health Services Union No. 2 Branch (the Union) for Protected Action Ballot Orders for employees employed in the provision of mental health services. The Applications are made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The first application (B2012/112) seeks to ballot employees employed by the Victorian Institute of Forensic Mental Health, known as Forensicare. It is a statutory agency established by the Victorian Government to provide forensic mental health services. Its clinical services are provided in a secure hospital, which treats patients from the criminal justice system in need of psychiatric assessment and care, together with the treatment of patients from the public mental health system who require specialised management. It also provides an outpatients program to high risk mentally disordered offenders with significant forensic issues. In addition it provides specialised mental health care in prisons.

[3] The second application (B2012/113) seeks to ballot employees involved in the provision of mental health services in 19 metropolitan and regional hospitals covered by a Single Interest Employer Authorisation (the Authorisation) made by Commissioner Jones in December, 2011 following an application by the Victorian Hospitals’ Industrial Association (the VHIA). The employees described in that Authorisation are Registered Psychiatric Nurses, Psychiatric Enrolled Nurses, Psychiatric Services Officers and Other Non Direct Care Employees, and Allied Health Professionals employed solely or predominately in the provision of Psychiatric services. The VHIA is the bargaining representative for both the employers covered by the Authorisation and for Forensicare (the Respondents).

[4] The Applications were initially set down for hearing on 4 May, 2012. The Respondents then objected to the making of Protected Action Ballot Orders (Orders) and sought an adjournment to enable submissions to be put in support of those objections. The application for an adjournment was opposed by the Union, however, it was granted and the matter listed again on 9 May, 2012. The Respondents subsequently provided a written outline of submissions prior to that hearing in accordance with agreed directions. A decision was reserved at the conclusion of those proceedings.

[5] On 15 May, 2012, separate Orders were issued for the holding of protected action ballots in both matters. Both Orders amended the Union’s applications in regard to the group of employees to be balloted. The Orders were also amended in both matters to provide for an extended period of written notice for one of the types of proposed protected industrial action. These are the reasons for decision.

The Grounds of Objection

[6] The Respondents oppose the Applications on four grounds:

1. The Applications and proposed Orders pose ballot questions that cannot determine whether employees wish to engage in “particular protected industrial action” because they “roll up” 16 separate types of proposed industrial action in one single “Yes/No” question. Employees who wish to approve of some forms of industrial action, but not others, are incapable of responding to the ballot.

2. To the extent the group of employees to be balloted in B2012/113 extend beyond the scope of the employees covered by the proposed agreement that is the subject of the Single Interest Employer Authorisation a Protected Action Ballot Order cannot be made as it is sought in pursuit of a multi-enterprise agreement.

3. The Applications and proposed Orders fail to specify the group of employees to be balloted because they include employees ineligible to participate. This arises from the terms of the draft Orders which state the employees to be balloted include those “eligible” to be members of the Union.

4. The Applications and proposed Orders seek to ballot some employees being balloted in another Protected Action Ballot Order made by the Tribunal. This raises an issue about whether the Applicant is genuinely trying to reach agreement.

[7] In the event these objections are dismissed and Orders are made the Respondents also propose the written notice period in respect of some of the types of proposed industrial action be extended from three days to seven days, pursuant to s.443(5) of the Act, because of the existence of “exceptional circumstances”.

[8] The third ground of objection was ultimately not pursued as the Union agreed at the commencement of the proceedings to a form of words to remove any reference or implication to the ballot extending to include employees “eligible” to be members of the Union.

[9] The respective arguments in regard to the remaining grounds of objection are summarised as follows.

• The Form of the Question

[10] The Respondents argue the Applications and the terms of the Orders proposed by the Union cannot determine whether employees wish to engage in “particular protected industrial action” because they roll up 16 separate forms of proposed industrial action into one single “Yes/No” question, meaning employees who wish to approve some forms of proposed action, but not others, are incapable of responding to the ballot.

[11] In support they refer to the Object of the relevant Division of the Act set out in s.436 in the following terms:

“The object of this Division is to establish a fair simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.”

[12] They note a similar jurisdictional requirement existed previously in the Workplace Relations Act 1996, but the additional word “particular” has now been added.

[13] They rely on the Full Bench decision in United Fire Fighters Union of Australia v Country Fire Authority (Fire Fighters) 1 and note the decision has been followed in a number of subsequent single member decisions of both Fair Work Australia and the Australian Industrial Relations Commission.

[14] They also refer to the Full Bench decision in John Holland Pty Ltd v AMWU (John Holland) 2, which considered a proposed Protected Action Ballot Order containing eight separate “Yes/No” questions, each describing a particular type of industrial action which could be taken “separately, concurrently or consecutively”. The Full Bench in that matter rejected the employer’s opposition to the making of a Protected Action Ballot Order. However, the Respondents seek to distinguish that decision because it dealt with circumstances involving separate “Yes/No” questions, rather than the single rolled up question now being proposed by the Union.

[15] The Respondents also refer to the more recent decision of Deputy President Smith in AEU v The State of Victoria (Department of Education and Early Childhood Development) (AEU v SOV) 3, which followed the decision in John Holland. The Respondents again distinguish this decision on the basis it was not dealing with a rolled up question. They refer instead to the decisions in NUW v Fresh Exchange Pty Ltd (NUW v Fresh Exchange)4and ASU v Pelican Point Power Limited (ASU v Pelican Point Power)5, which both refused to make Protected Action Ballot Orders in circumstances where ballots proposed multiple types of proposed action and one single “Yes/No” question. They submit in order to determine whether employees wish to approve of particular industrial action, and to provide a ballot question employees are capable of responding to, each separate form of industrial action must be specified in a separate or particular question and be capable of being authorised, or not, by a separate or particular response in each case.

[16] They also argue the insertion of the word “particular” in ss.436 and 437(1) of the Act is a significant and intentional addition. A single question seeking to authorise multiple forms of action is not one that permits employees to express their wish to engage in “particular protected industrial action”. It argues a single question dealing with industrial action so diverse cannot constitute a “fair, simple or democratic process.”

[17] The Respondents also refer to the decision of Vice President Lawler in CPSU v Australian Customs and Border Protection Service (CPSU v Customs and Border Protection) 6, which followed John Holland. They suggest the Vice President incorrectly viewed the decision in John Holland as dealing with circumstances in which a rolled up question was involved, rather than several types of proposed industrial action with a “Yes/No” answer option being provided in each case.

[18] The Union argue in response there is nothing complex, unfair or undemocratic in the form of the question being asked. The important issue is whether those called on to vote understand the plain words of the question. The decisions in John Holland and AEU v SOV are relied on in support of this view. It argues the detailed nature of the bans and other proposed action actually provide more information to those participating in the ballot than the generality of the words in the question considered by Deputy President Smith in AEU v SOV. The Union argue that matter actually involved a rolled up question with several types of proposed action contained in a single sentence question.

[19] The Union submit the current question is capable of being understood and is expressed in clear and concise language. There is nothing ambiguous or doubtful. It again refers to the decision in John Holland and the view of the Full Bench that in most cases the drafting of questions will be a matter for the applicant.

• The Application Extends Beyond the Scope of Employees Covered by the Proposed Agreement

[20] The second ground relied upon by the Respondents argues the group of employees to be balloted is so broad as to invalidate the application, essentially because it goes beyond those employees identified in the Single Interest Employer Authorisation. Accordingly, it extends beyond the limitation in s.437 (5) (a), which provides the group of employees to be balloted include only those to be covered by the proposed enterprise agreement.

[21] The Respondents argue in turn if the group of employees to be balloted extend beyond those identified in the Authorisation then the Protected Action Ballot Order is no longer being sought in respect of a single-enterprise agreement, but is instead pursued in respect of a multi-enterprise agreement. Section 437(2)(b) precludes such an Order being made. Any Order must be confined within the description of employees contained in the Single Interest Employer Authorisation and not extend to include reference to other employee categories.

[22] The Union argues in response that the application is made in pursuit of a single-enterprise agreement. That agreement is sought to be made with the employers subject to the Authorisation. It acknowledges the application and proposed draft Order do contain a different description of the employees to be balloted than contained in the Authorisation. This has been proposed to make sure the electorate participating in the ballot is the correct one, without dispute or ambiguity. The additional words have been included to put that issue beyond doubt. However, it does not mean the application is now being sought in pursuit of a multi-enterprise agreement. The Union also indicates it would be prepared, in the alternative, to accept an amended Order that reflects the description of employees contained in the Authorisation.

• Not Genuinely Trying to Reach Agreement

[23] The Respondents next argue the inclusion of psychologists in the employees to be balloted suggests the Union are not genuinely trying to reach agreement, as the Tribunal has recently made another Protected Action Ballot Order, which includes psychologists amongst those to be balloted. That group of employees are already genuinely trying to reach agreement in that matter. Accordingly, they cannot now be genuinely trying to reach agreement in respect of the present applications.

[24] The Union argue in response it is not uncommon for Protected Action Ballot Orders to be made in respect of the same employees. This situation is not an indication of bad faith or of not genuinely trying to reach agreement. The Union have been open and frank about its principal intention to have one single agreement cover the mental health sector, but it is also prepared to consider other options and outcomes. Whilst the Act clearly precludes more than one agreement applying to the same employee, or group of employees, there is nothing to prevent multiple ballot applications as part of the process that leads to that conclusion.

• Exceptional Circumstances Justify a Longer Notice Period

[25] In the event Orders are made, the Respondents also seek to have the written notice period required by s.414(2)(a) extended to seven days in respect of the types of proposed protected industrial action identified in sub-paragraphs l, m, n, o, p and q of the Draft Order in B2012/112 and in sub-paragraphs l, m, n ,o and p of the Draft Order in B2012/113.

Consideration

[26] I now deal with each of the grounds of objection raised by the Respondents.

• The Form of the Question

[27] The issue of whether a single question in a protected action ballot application can authorise multiple types of protected industrial action has been considered in several Full Bench and single member decisions.

[28] The Respondents rely on the Full Bench decision of Watson VP, Lacy SDP and Hingley C in Fire Fighters, which has been followed in subsequent single member decisions.

[29] A particular issue in that matter concerned the description of one of the types of proposed industrial action. It was expressed in the following terms:

“5. Industrial action in the form of bans on complying with any orders, directions and/or instructions issued by the employer to act in any way that is contrary to the protected industrial action that is taking place.” 7

[30] It was argued by the Respondents that the wording required a subjective approach to be taken in each case to what is or might be industrial action. The Full Bench held in response:

“In our view, the submissions by the CFA, in respect in paragraph 5 at least, are correct. Paragraph 5 does not specify any particular industrial action - but rather is an attempt to adopt a catch-all category of bans on complying with directions from the employer where the effect of the direction is to act in a way contrary to the protected industrial action. This may involve directions to perform alternate duties to those subject to protected action bans. A ban on such alternate duties may change from time to time depending on the nature of directions given by the employer to respond to protected action. We do not believe that proposed industrial action described in that manner satisfies the requirement in s.452 (1) that the question in the application include the nature of the proposed industrial action. Rather the description is a general category of unspecified action. In our view, it is vague and meaningless.” 8

[31] However, the Full Bench also considered the other types of proposed action to be included in the ballot and indicated:

“We also have significant concerns about the description of the proposed industrial action in several of the other paragraphs. While some of the bans are specified others are expressed by reference to vague concepts. 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 question 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 to ballot should enable employees to understand the implications for them while at work and other relevant circumstances. For the reasons outlined above we are of the view that the proposed industrial action contained in Schedule 1 did not satisfy the description of “the question to be put to the relevant employees in the ballot including the nature of the proposed industrial action.”  9

[32] This decision has been followed in subsequent single member decisions, including in two decisions referred to by the Respondents – the decision of Vice President Watson in NUW v Fresh Exchange and the more recent decision of Deputy President Bartel in ASU v Pelican Point Power, which both refused to make Protected Action Ballot Orders in circumstances where ballots proposed multiple forms of proposed industrial action and one single “Yes/No” question.

[33] The issues were considered again in the more recent Full Bench decision of John Holland, dealt with under the Fair Work Act and the provisions of s.437. As indicated by the Respondents the section now includes the word “particular,” unlike the preceding legislative provisions in the Workplace Relations Act 1996. It is appropriate to set out s.437 of the Act in full:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

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.

Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[34] The decision in John Holland dealt with several grounds of appeal. They included argument the Union’s application was not a valid one because the question to be put was ambiguous and did not adequately specify the nature of the industrial action for which endorsement of the employees was sought.

[35] The preamble to the question in John Holland, as in the present matter, asked whether employees wished to engage in industrial action “separately, concurrently and or consecutively”, which it was argued made the outer limits of any action unclear. It then proposed eight types of proposed industrial action with a separate “Yes/No” question following in each case.

[36] In dealing with the issue the Full Bench noted, firstly, an application under s.437 is the first step only in a process leading to the possible initiation of protected industrial action. It referred to other relevant sections of the Act.

[37] For example:

• s.409(2) requires that employee claim action “must be authorised by a protected action ballot (see Division 8 of this Part).”



• s.413 and s.414 must be complied with before protected action can be taken.



• s.414, in particular, includes the written notice requirements.

[38] The Full Bench then stated at paragraph 16 of the decision:

“We draw attention in particular to the requirement for notice in ss.414(1) and (6). If the action specified in the notice is not authorised by the relevant ballot, any action taken pursuant to the notice will not be protected industrial action. For this reason there will be a natural tendency for bargaining representatives to frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot. If the ballot questions describe industrial action in a general way it might subsequently be held that specific types of industrial action were not authorised. No doubt, for that reason, a number of bargaining representatives have drafted ballot applications containing very detailed questions.”

[39] The Full Bench then examined the intent of s.437. It stated at paragraph 19:

“Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). 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. It follows that in most cases the drafting of the questions will be a matter for the applicant.”

[40] It continued to indicate at paragraph 22:

“Nor do we accept the criticism that questions one to eight, taken together, are nonsensical. An employee can endorse a number of different types of industrial action even if the deployment of one type may logically exclude another. There is no reason why employees cannot be asked to endorse a range of options.”

[41] The decision in John Holland was followed more recently by Deputy President Smith in AEU v SOV in a matter that involved a different form of question. It proposed a variety of forms of proposed action described in a single sentence followed by a single “Yes/No” answer in these terms:

“In support of reaching an enterprise agreement, do you endorse taking protected industrial action in the form of an unlimited number of State wide or Regional or Sub Branch stoppages of work of 1 to 24 hours duration or bans or limitations on the manner in which work is undertaken?”

[42] I agree with the submission of the Union in the present matter that the various forms of action encompassed within that single sentence arguably provide less specificity about the particular protected industrial action that might subsequently be engaged in, than the description of the proposed types of industrial action set out in the current ballot applications.

[43] The decision in John Holland was followed by Vice President Lawler in CPSU v Customs and Border Protection. In that matter the Vice President also considered the respective decisions in Fire Fighters and John Holland and continued to indicate at paragraph 8:

“I note that many ballot orders containing rolled up questions have been made by members of Fair Work Australia. For the reasons that follow, I find myself unable to agree with the conclusions of Watson VP that such an approach is impermissible under the Act.” 10

[44] He continued to indicate at paragraph 11:

“The criticism of the ‘rolled up’ question in the present case comes down to the proposition that an employee may support some forms of industrial action specified in the question but not others and a ‘rolled up’ question deprives the employee of the opportunity of approving some forms of action but not others and that this is contrary to the provisions of the FW Act set out above. However, that is precisely the criticism directed at question 8 in John Holland and rejected by the Full Bench in paragraph [21] of its decision. The reasoning in paragraph [19] is also particularly apposite and, in my view, directly applicable to the present case.”

[45] The Respondents in the present matter suggest Vice President Lawler came to this decision in CPSU v Customs and Border Protection based on an incorrect view of the circumstances before the Full Bench in John Holland, namely it involved various types of proposed action, but only one single “Yes/No” question. However, at paragraph nine of his decision Vice President Lawler sets out the precise form of the question in John Holland, making it clear each of the eight types of proposed action have a separate “Yes/No” question. He does not appear to have been under a misapprehension about this situation.

[46] The Respondents also relied on a more recent decision of Deputy President Bartel in ASU v Pelican Point Power. In that matter the Deputy President refused to make a Protected Ballot Order in the terms proposed initially by the Union in circumstances where it was proposing five types of proposed action followed by a single “Yes/ No” question. The Deputy President directed the Union to provide an amended Order reflecting her concerns. However, despite the fact the decision was handed down subsequent to the decision in John Holland, it makes no reference to that Full Bench decision and cites only the decision in NUW v Fresh Exchange. I am not persuaded it should be preferred.

[47] It is appropriate in my view to follow the approach taken in John Holland and to adopt the view that, in most cases, the nature of the question or questions to be proposed in a protected ballot application will be a matter for the applicants to determine, providing the plain meaning of the words is able to be understood. I have no doubt this is the case in the present matter, particularly as it involves employees who have previous experience with these processes.

[48] Clearly, some applicants have adopted the approach of including a “Yes/No” question for each type of action being proposed. Others have adopted the practice of listing various types of action and posing a single “Yes/No” question at the conclusion. It is for each to explain why these different approaches have been taken, however, based on the Full Bench decision in John Holland, and decisions that followed, both approaches are acceptable.

[49] It can be argued it is preferable to have separate questions in respect of each type of proposed action. There are also risks inherent for an applicant in posing several types of proposed action but only a single question. In such cases an employee participating in the ballot, who supports some types of action but not others, might vote “no” and effectively reject all forms of action. Bargaining representatives presumably weigh up these considerations in drafting the questions included in their applications and the form they take.

[50] However, for the reasons indicated above, the approach adopted by the Union in the present matter does not render the Applications invalid on this ground.

• The Application goes beyond the scope of the Employees covered by the proposed Enterprise Agreement

[51] This ground concerns only the application in matter B2012/113. The Respondents argue an Order cannot be made because the employees intended to be covered extend beyond the scope of those described in the Single Interest Employer Authorisation. Accordingly, the proposed agreement cannot be a single interest employer agreement and should instead be categorised as a multi-enterprise agreement.

[52] The Act precludes a Protected Action Ballot Order from being made in respect of a multi-employer agreement. An Order can only be made in respect of a single enterprise agreement which, pursuant to s.172(2), includes “single interest employers.” Section 172(5)(c) provides in turn that single interest employers include employers specified in a Single Interest Employer Authorisation in operation in relation to the proposed enterprise agreement.

[53] The relevant parts of that section are as follows:

“172 Making an enterprise agreement

Enterprise agreements may be made about permitted matters

(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations that will be covered by the agreement;

(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d) how the agreement will operate.

Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.

Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.

Single-enterprise agreements

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).”

[54] The Union submits in response a broader description of the employees to be balloted is being proposed in the ballot application to assist the Australian Electoral Commission, in particular, identify who is entitled to participate in the ballot. However, it is not intended to extend that group beyond those described in the Single Interest Employer Authorisation.

[55] Both the Respondents 11 and the Union12 appeared to indicate they would be prepared to accept an outcome that incorporated the description of employees covered by the Single Interest Employer Authorisation in any Ballot Orders made.

[56] The application for the Single Interest Employer Authorisation was initiated by the Victorian Hospitals’ Industrial Association (VHIA) in a letter to the Minister in October, 2011 for the required declaration under s.247(5) of the Act. That declaration was subsequently made by the Minister in the following month and the VHIA then made application to Fair Work Australia under s.248(1) for a Single Interest Employer Authorisation. The matter was heard before Commissioner Jones on 2 December, 2011 and a decision issued ex tempore. Reasons for decision were issued by the Commissioner on 6 December, 2011. The Australian Nursing Federation and the Health Services Union appeared in those proceedings and both indicated their support for the making of the Authorisation sought.

[57] The original application by the VHIA for a declaration from the Minister indicated in part:

“The relevant employers wish to bargain together for an agreement to cover them and the following employees of the employers:

Registered Psychiatric Nurses

Psychiatric Enrolled Nurses; and

Psychiatric Services Officers and Other Non Direct Care Employees

Allied Health Professionals employed solely or predominately in the provision of Psychiatric services.”

[58] The same description of the employees to be covered was contained in the application made to Fair Work Australia and dealt with by Commissioner Jones. It is reflected in the subsequent Authorisation she issued.

[59] For the reasons set out earlier it is the Single Interest Employer Authorisation that enables a Protected Action Ballot Order to be made in response to the present application in matter B2012/113. It is accordingly appropriate the description of the group of employees to be balloted precisely reflects the group of employees covered by and described in the Authorisation. The Protected Action Ballot Order made in this matter reflects this decision.

• Not Genuinely Trying to Agree

[60] The third ground raised by the Respondents is that the Union cannot be seen to be genuinely trying to reach agreement, as required by s.443(1)(b), because a separate Protected Action Ballot Order, covering some of the same employees, has been previously sought and obtained. They question whether those employees can be said to be genuinely trying to make an agreement if they are also pursuing the making of an agreement in other proceedings.

[61] Section 58 of the Act makes clear only one enterprise agreement can apply to an employee at a particular time. However, the Act does not appear to preclude various strategies and different approaches being pursued by a group of employees and their bargaining representative in the process of working to achieve a concluded agreement. This might involve, for example, as described in the Union’s submission “negotiating on two fronts” as part of the process of getting to that end outcome. The Respondent’s submissions do not in my view, support the contention the Union is not genuinely trying to reach agreement.

Conclusion

[62] I am accordingly satisfied that the Applications have been “made” in both matters and the Union is genuinely trying to reach agreement. Having come to that decision s.443(1) of the Act requires Protected Action Ballot Orders must be made.

• Exceptional Circumstances

[63] The final matter for determination concerns the Respondent’s submission that exceptional circumstances exist to justify the written notice provided pursuant to s.414(2) being more than three working days. Section 443(5) enables a longer period to be specified if Fair Work Australia is satisfied there are exceptional circumstances justifying that outcome. The extension can be up to seven working days.

[64] The Respondents seek an extension to seven working days for selected types of the proposed protected industrial action.

[65] In matter B2012/112, the extended notice period is sought for the following types of proposed action only:

“l. Bans on roster changes initiated by management with less than 7 - 28 days’ notice

m. Bans on moving between units and/or teams and/or worksites

n. Bans on overtime and/or being on call and/or being recalled o service

o. Bans on secondary consultation arrangements with AMHS,

p. Bans on undertaking, presenting and typing of court reports - Pre sentence and Parole Board,

q. An unlimited number of stoppages of the performance of all work for between 1 -24 hours.”

[66] In matter B2012/113 the extended period is sought in respect of the following types of proposed action:

“l. An unlimited number of stoppages of the performance of all work for between 1 - 2 hours,

m. Bans on admissions over numbers and/or leave beds,

n. Bans on moving between teams and/or worksites,

o. Bans on roster changes initiated by management with less than 7 - 28 days notice,

p. An unlimited number of stoppages of the performance of all work or between 1 - 24 hours.”

[67] In summary, the proposed action for which an extended notice period is sought involves common forms of action in both Applications, namely:

• Bans on moving between units and/or teams and/or worksites;



• Bans on roster changes initiated by management with less than 7 - 28 days notice; and



• An unlimited number of stoppages of the performance of all work for between 1 - 24 hours.

[68] In B2012/112 it also includes:

• Bans on overtime and/or being on call and/or being recalled to service;



• Bans on secondary consultation arrangements with AMHS; and



• Bans on undertaking presenting and typing court reports - pre sentence and Parole Board.

[69] In B2012/113 it also includes:

• An unlimited number of stoppages of the performance of all work for between 1 - 2 hours (This was not sought to be included in the extended notice in matter B2012/112 even though the same type of proposed action also appears in the ballot application in that matter).



• Bans on admissions over numbers and/or leave beds.

[70] As both the Union and the Respondents have indicated the question of what constitutes “exceptional circumstances” was considered by Vice President Lawler in CEPU v Australian Postal Corporation (CEPU v Australian Postal Corporation) 13.That matter was concerned with similar provisions under the Workplace Relations Act 1996 and the decision has been followed in a number of single member decisions. It involved submissions by the Respondents the period of written notice should be extended to the maximum permissible seven day period because of various consequences stemming from the possible disruption of postal services.

[71] The Vice President indicated in that decision:

“In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). 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.”

[72] He also indicated it was not just a question of whether those exceptional circumstances existed but whether their existence justifies an extension of the required notice period:

“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.” 14

[73] The Vice President suggested it involved a weighing of respective interests, stating at paragraph 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.”

[74] The Vice President did in fact find exceptional circumstances existed as a consequence of the potential disruption to mail services at that particular time, however, he also decided those circumstances did not justify an extension of the written notice period.

[75] The Respondents also rely on the decision of Deputy President Smith in AEU v SOV in support of the view an extended time period should be provided in respect of the selected types of action identified. In that matter Deputy President Smith provided a longer period of five days notice to assist parents make alternate arrangements in the face of disruption to school classes.

[76] The Respondents also referred, in particular, to paragraph 25 of the decision and the view expressed by Deputy President Smith:

“Given that is not possible to distinguish between the types of industrial action which might be undertaken when setting the timeframe it is appropriate that a decision take into account action which will be the most disruptive to parents and schools.”

[77] The Respondents argue the Tribunal must also give consideration to the nature of the industry sector involved and the consequences of the industrial disruption that might result. It was suggested in an industry like the health sector, and particularly the provision of mental health services, it might be easier to come within what constitutes “exceptional circumstances”. It does seem almost inevitable these considerations come into sharper focus when the provision of mental health services is involved, given the nature of the work and the services being provided to patients.

[78] The Union argues in response the correct approach is to look for something out of the ordinary. Industrial action is inevitably inconvenient and difficult to deal with. An employer will need to deal with any industrial action that might occur. This is an inevitable consequence of a Protected Action Ballot Order, rather than something out of the ordinary. The general presumption is that three days written notice should apply.

[79] They also refer to the decision in CEPU v Australian Postal Corporation and argue any consideration of exceptional circumstances requires weighing the interest of the employer, and any other impacted third parties, and the reduced bargaining power any change to the specified period might propose. In general it would require something extraordinary which involved broader public interest considerations. All industrial action is inconvenient and poses difficulties, but this is not enough to constitute circumstances that are novel, or extraordinary, and justify something other than the standard three day written notice period.

[80] The Union also points to the defensive strategies that could be put in place by employers to limit disruptive action. Additional overtime, extended casual hours, use of agency staff and the deployment of other professional and managerial staff are all highlighted as possible options. It is also submitted and acknowledged in cross examination that less than 50% of employees are eligible to participate in the ballot and any subsequent industrial action.

[81] Mr Richard Corboy, a Principal Industrial Advisor with the VHIA provided evidence for the Respondents. Mr Corboy has been employed by the VHIA for 17 years in a variety of roles. No other witness evidence was provided.

[82] Mr Corboy’s evidence indicated:

• Public clinical mental health services are aimed primarily at people with more severe forms of mental illness or disorder including psychotic and non - psychotic disorders, whose level of disturbance or impairment prevents other services from adequately treating or managing them.



• The services provided by the employers include acute in patient and sub acute care and rehabilitation. Patients admitted to acute in patient units can present with severe mental illness which include psychosis, depression, eating disorders, suicidal ideation and mood disorders.



• Patients present with illnesses that cannot readily be treated in other facilities given the specific and specialised nature of their conditions and the treatment required. Whilst most mental health providers are associated with or attached to hospitals it was not necessarily appropriate or safe for other hospital staff to be asked to work in a psychiatric ward.



• Patients are often vulnerable and unpredictable in terms of their behaviour and can be at extreme risk to themselves, their families, and others in the community. Some patients are being treated because they have been assessed to meet the criteria for involuntary treatment and are admitted on that basis.



• The Respondents defensive armoury is limited. Agency staff are one available option, but are limited in number and can be difficult to get at short notice, particularly in regional locations.



• Whilst it is inherently difficult to take defensive action, greater notice means employers are better placed to reallocate resources and to take whatever measures might be available to work to minimise the impact upon patients, their families, and the broader community.



• It would be immensely difficult to provide services in the event of only three days notice being provided of protected industrial action involving seven consecutive days of twenty - four hour stoppages. Psychiatric services could not be assured to be provided in a safe and appropriate manner and people’s health would be at risk.



• Forensicare stands apart from the other providers and has a primary focus on the treatment of patients with mental illness who have offended or are at risk of doing so.

[83] The Respondents written submissions also referred to the recent decision of Commissioner Gooley in Australian Nursing Federation v Victorian Hospitals’ Industrial Association 15. In that decision, the Commissioner extended the period of written notice in the case of one of the types of proposed industrial action intended to be part of a ballot question put by the Australian Nursing Federation. The Agreement was intended to cover Victorian public sector nurses and midwives. The employers had sought the extended period apply to several of the proposed types of action but, as indicated, the Commissioner restricted the extended notice to one type only, dealing with the following proposed action:

“Industrial action in the form of single and/or consecutive work stoppages each of up to four hours duration including such stoppages to travel for and to attend stop work meetings.” and “work stoppages of up to four hours.”

[84] The Union argues an extended time period has never been included in a Ballot Order sought by it in the past, apart from when an extended period has been proposed by the Union itself.

[85] It is clear from the submissions and evidence, and an assessment of the various types of industrial action proposed, that the extended notice period is sought in respect of the proposed forms of industrial action with the potential to have greatest impact.

[86] Little if any evidence was provided about the specific impact of some of the forms of proposed action sought to be encompassed within the longer notice period requirement. The evidence primarily, but not exclusively, focussed on the impact of extended stoppages of work.

[87] There was no issue raised by either party about the nature of the work being performed and the services being provided by the group of employees sought to be balloted.

[88] That work and those services take a variety of forms and include acute in - patient care, as well as community based clinical mental health services. In the public sector clinical mental health services are provided, in particular, to patients with significant forms of mental illness, whose level of disturbance and impairment make it very difficult for other health service providers to treat them. Patients in acute wards are generally severely affected, highly vulnerable and prone to unpredictable behaviour. The evidence of Mr Corboy indicated they can be an extreme risk, both to themselves, their families, and at times to others in the community.

[89] Mr Corboy’s evidence also indicated an extended notice period of protected industrial action can assist to enable resources to be reallocated to endeavour to minimise, as far as possible, the adverse impacts of industrial action on patients, their families, and the community.

[90] He also indicated Forensicare has a primary focus on the treatment and management of those with mental illness who have offended or are at risk of offending. Forensicare also provides clinical services for patients in the criminal justice system and those in the public mental health system who require specialised management.

[91] In my view a complete stoppage of work for a protracted period of time would undoubtedly have a significant impact on this difficult and specialised area of patient care; one in which it is difficult to obtain appropriately qualified replacement staff. Such disruption would put patients at risk, as well as others in the community, particularly if concerted and prolonged action was carried out across a number of providers. This potential situation can be contrasted with prolonged disruption in another industry sector, which might be costly and disruptive, but stop well short of posing a threat to the health and safety of those already vulnerable and at risk.

[92] It is possible for prolonged industrial action to take place if a ballot is successful, given one of the proposed forms of action in both matters involves “an unlimited number of stoppages of the performance of all work for between 1 - 24 hours” and the fact that such action can be taken “separately, concurrently and/or consecutively.” Taken together I am satisfied there are exceptional circumstances that justify an extended written notice period as provided in the Orders issued.

[93] As the decisions in CEPU v Australian Postal Corporation and AEU v SOV confirm, any consideration of an extended notice period needs to be weighed and balanced against the entitlement of employees to take protected industrial action in pursuit of their bargaining position. The decision I have come to has been arrived at in the light of these considerations. It provides an additional written notice period requirement in respect of what is identified as the most disruptive from of industrial action without, of course, removing that option completely. It will, based on the evidence of Mr Corboy, provide some assistance to employers to enable action to be taken to protect patient health and safety and the health and safety of others. It also leaves a range of other possible action in place that are still subject to the three day notice period.

Conclusion

[94] Against this background, I have concluded in relation to the proposed industrial action in sub-paragraph q. in B2102/112 and subparagraph p. in B2012/113, described in both matters in the same terms namely “an unlimited number of stoppages of the performance of all work for between 1 - 24 hours”, that there are exceptional circumstances which justify the written notice required to be provided by s.414(2) being longer than three days. It will instead require seven days notice to be provided before this form of action is engaged in. The Protected Action Ballot Orders issued on 15 May, 2012 reflect this decision.

COMMISSIONER

 1 (2006) 158 IR 120

 2   [2010] FWAFB 526

 3   [2012] FWA 3729

 4   [2009] FWA 221

 5   [2010] FWA 7739

 6   [2010] FWA 8293

 7 (2006) 158 IR 120 at [3]

 8   Ibid at [29]

 9   [30]-[32]

 10   [2010] FWA 8293 at [8]

 11   Transcript of proceedings at PN 25

 12   Transcript of proceedings at PN 19

 13   2007 AIRC 848

 14   2007 AIRC 848 at [11]

 15   [2011] FWA 7198

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