Mater Misericordiae Health Services Brisbane Limited v Queensland Nurses' Union of Employees - [2014] FWC 2019

[2014] FWC 2019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc. s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Mater Misericordiae Health Services Brisbane Limited
v
Queensland Nurses' Union of Employees
(C2014/3524) and (B2014/607)

COMMISSIONER SIMPSON

BRISBANE, 26 MARCH 2014

Alleged industrial action at Mater Misericordiae Health Services Brisbane Limited - whether notice under s.414 specified the nature of the proposed industrial action - s.418 Order issued against certain forms of action - Protected Action does not threaten to endanger the life, the personal safety or health, or the welfare of part of the population - s.424 application dismissed..

[1] On 19 March 2014 at 4.30pm the Mater Misericordiae Health Services Brisbane Limited (the Mater) filed two applications, one being for an order that threatened, impending or probable industrial action stop in accordance with s.418(2)(b) and the other for an order terminating protected industrial action for a proposed enterprise agreement under s.424 of the Fair Work Act2009 (the Act). This decision is a decision in respect of both applications.

[2] Similar applications to those filed on 19 March had been filed by the Mater on Thursday, 13 March 2014, but both of those applications (B2014/595 and B2014/3424) were withdrawn following the provision of undertakings by the Queensland Nurses Union of Employees (QNU) to the Fair Work Commission (FWC), to withdraw a notice of employee claim action that was notified on 11 March 2014 and scheduled to commence from Monday, 17 March 2014 at 7.30am.

[3] Section 420(2) requires that as far as practicable, the FWC must determine an application for an order under s.418 within 2 days after the application is made. Section 424(3) requires that the FWC must, as far as practicable, determine the s.424 application within 5 days after it is made. The two applications were listed for hearing at 3pm on Thursday, 20 March 2014. The QNU sought an adjournment and proposed the s.418 application be heard the following day. For reasons given in transcript I decided to issue an interim order under s.420 and directed that the two matters be heard at 10am on Monday 24 March 2014.

[4] The two applications were heard together on Monday 24 March and at the conclusion of the hearing on Monday evening I advised that I was satisfied that I was unable to determine the matters before the expiry of the 5 days for the s.424 matter. An interim order was issued under s.424(4) and I advised the parties I intended to issue a decision in both matters within the next two days.

[5] The Applicant was represented at the hearing by Mr Dixon, Senior Counsel, and Mr Gotting of Counsel, instructed by Mr Hall of Ashurst Lawyers. The Respondent was represented by Mr Friend, Senior Counsel, instructed by Mr Massey of Hall Payne Lawyers.

Background

[6] Many of the background…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mater Misericordiae Health Services Brisbane Limited v Queensland Nurses' Union of Employees [2014] FWC 2019
Case: [2014] FWC 2019
Decision Date: 26 MARCH 2014

CaseChat Overview and Summary

Mater Misericordiae Health Services Brisbane Limited sought an injunction against the Queensland Nurses’ Union of Employees, alleging that the union’s industrial action threatened the safety of the public. The case was heard in the Queensland Industrial Relations Commission, where the central issue was whether the union had provided sufficient notice of the industrial action under section 414 of the relevant legislation. Additionally, the Commission had to determine whether the industrial action posed a threat to public safety, which would render it unlawful under section 424.

The legal issues before the Commission were whether the union had complied with the notice requirements set out in section 414 of the Act, and if the industrial action posed a threat to the public's safety, thus making it unlawful under section 424. The union argued that the notice provided was sufficient and that the action did not endanger public safety. The hospital, on the other hand, contended that the notice was inadequate and that the action indeed posed a significant risk to patient safety.

The Commission found that the union had not adequately specified the nature of the industrial action in its notice, contrary to the requirements of section 414. However, it also concluded that the industrial action did not threaten the life, personal safety, or health of the public. As such, the Commission dismissed the hospital's application for an injunction. The union's notice was deemed insufficient, but because the action did not endanger public safety, it was not subject to an order under section 418, and the application under section 424 was dismissed.

No further orders were made by the Commission. The union's failure to provide a sufficiently detailed notice did not result in the invalidation of the industrial action, as it did not threaten public safety. The Commission's decision highlighted the importance of precise notice in industrial action, while also affirming the right to protected action that does not compromise public welfare.

Orders