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had been filed by the Mater on Thursday, 13 March 2014, but both of those applications (B2014/595 and B2014/3424) were withdrawn following the provision of undertakings by the Queensland Nurses Union of Employees (QNU) to the Fair Work Commission (FWC), to withdraw a notice of employee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 facts are common to both applications and I will summarise them below.

[7] The Mater is a constitutional corporation within the meaning of the Act, which operates the Mater Misericordiae Adult Public Hospital, Mater Misericordiae Children’s Hospital and Mater Misericordiae Mothers’ Hospital.

[8] The conditions of employment for the employees subject to this application are, in part, contained in the Nurses and Midwives (Mater Misericordiae Public Hospitals, Brisbane) Workplace Agreement 2009. The nominal expiry date of the Agreement was 31 March 2012.

[9] On 5 February 2014 the FWC issued a Protected Action Ballot Order. The ballot concluded on 4 March 2014 and was successful in that the majority of voters approved each of the questions in the ballot.

[10] On 4 March 2014 the QNU provided notice under s.414 (the first notice) of the commencement of industrial action on 10 March 2014. The action proposed to commence from 10 March was as follows:

1. Wear, display or distributing stickers, postcards, badges, newsletters, and other QNU campaign material in support of the enterprise bargaining campaign.

2. Distribute QNU campaign related information for the purpose of engaging patients, members of the public and media in the enterprise bargaining campaign.

3. Place a ban or partial ban on wearing authorised uniform.

[11] Caroline Hudson, Executive Director People and Learning, at the Mater sent a letter to Ms Mohle at the QNU on 5 March raising concerns for patient safety arising from the proposed industrial action and seeking confirmation that patient safety would not be compromised by posing a range of questions to the QNU concerning each item in the 4 March notice.

[12] On 6 March 2014 Ms Mohle, Secretary of the QNU, sent correspondence to Ms Hill, Director of Nursing and Midwifery across the three Hospitals operated by the Mater proposing a process for resolving concerns of the Mater over patient safety arising from the proposed industrial action. That proposal in short involved a three step process as follows:

• Step 1 - the NUM (or relevant clinical manager) would contact the QNU organiser, Vicki Shakoff, to discuss their concerns and attempt to resolve those concerns by varying the application of any industrial action. Step 1 would only be activated following the NUM having a genuine belief, that in their professional judgement, patient safety may be compromised.

• Step 2 - If step 1 is unsuccessful, the NUM (or relevant clinical manager) will escalate the matter to the Nursing Director. The Nursing Director will contact the QNU professional officer and/or industrial officer in an attempt to resolve the concerns.

• Step 3 - If Step 2 is unsuccessful, the Nursing Director will escalate the matter to the Director of Nursing and Midwifery Services, who will contact the QNU Secretary to resolve the matter.

[13] The QNU correspondence included an undertaking that it would immediately consider and respond to any contact from Mater where a genuine belief is held that any protected industrial action undertaken by nurses and midwives is compromising safe patient care. The correspondence went on to provide the relevant office and mobile phone contact details for the relevant persons within the structure of the proposed process.

[14] On 7 March 2014 Ms Hudson on behalf of the Mater sent a response to the QNU letter advising the QNU it did not regard the QNU proposal as alleviating its concerns and noted the QNU Proposed Safety Process provided the QNU with discretion to accept or reject the genuineness of the concerns of the Mater involving professional judgement. The letter requested a response by 3pm Friday 7 March.

[15] On 7 March Ms Mohle, the Secretary of the QNU sent correspondence to Caroline Hudson, attaching the earlier proposed process from the QNU that had been forwarded to Ms Hill.

[16] On 10 March 2014 the industrial action identified by the QNU in its notice of 4 March commenced.

[17] On 11 March 2014 the QNU sent a further notice under s.414 of action to commence at 7.30am on Monday 17 March 2014 (the second notice). The proposed action was notified as follows:

(a) Limiting work strictly within the confines of the industrial instrument including limiting overtime work to rostered or authorised overtime hours and taking or claiming all breaks;

(b) A ban on the performance of duties relating to precepting; and

(c) Attendances at one hour stop work meetings.

[18] The letter also referred to the earlier referenced proposed safety process. On 14 March 2014 this notice was withdrawn.

[19] On 17 March 2014 at 4.56pm, the QNU provided a further notice under s.414 of the commencement of protected industrial action from 7.30am on 21 March 2014 (the third notice). The notice included the following:

(1) attendance at one 1 hour stop work meeting commencing at 7.30pm on 24 March 2014.

(2) limitation on the performance of overtime work to rostered or authorised overtime commencing at 7.30pm on 21 March 2014, to continue indefinitely.

(3) a ban on the performance of duties relating to precepting commencing at 7.30pm on 21 March 2014, to continue indefinitely.

(4) a ban or partial ban on activities which are not necessary for patient care in the registered nurses / midwives’ professional judgement and which are capable of performance by non-nursing staff commencing at 7.30am on 21 March 2014, to continue indefinitely.

(5) a ban or partial ban on computerised data entry and processing admissions which are capable of performance by non-nursing staff, commencing at 7.30am on 21 March 2014, to continue indefinitely.

(6) a ban on completing paperwork including no base paging which are capable of performance by non-nursing staff, commencing at 7.30am on 21 March 2014, to continue indefinitely.

(7) a ban or partial ban on answering any desk phone commencing at 7.30am on Friday 21 March 2014, to continue indefinitely.

[20] The third notice states explicitly that the industrial action won’t be taken in such a way so as to endanger the life, health, safety and/or welfare of any person, and went on to say that the QNU would ensure that for the duration of the stoppage of work minimum safe staffing will be maintained taking into account the particular needs of each and every ward.

[21] The third notice included the earlier proposal for the Mater to utilise the three step process proposed by the QNU to resolve any concerns of the Mater over patient life, health, safety and/or welfare arising from the proposed industrial action as outlined above. The correspondence on conclusion undertook to immediately and expeditiously consider and respond to any contact from the Mater in accordance with the process, and further undertook to take the necessary steps to ensure that the life, health, safety and/or welfare of any person is not endangered by the notified industrial action.

[22] On 18 March 2014 Ms Hudson on behalf of the Mater sent correspondence to the QNU advising that in its view the fourth form of industrial action set out in the third notice was unclear and ambiguous. It was said that the notice gives no indication of the types of activities affected, the likely identity of the non-nursing staff, the basis upon which it will be assessed that such activities are capable of performance by non-nursing staff or the identity of the person or persons making such assessment. It was said that the notice also gives no indication of how the QNU will ensure that registered nurses/midwives’ professional judgement concerning the non-necessary activities will be exercised consistently.

[23] The Mater said that without clarity regarding this form of industrial action it was unable to properly plan for and manage for the proposed industrial action so as to ensure that patient life, health, safety and welfare was not endangered.

[24] The QNU responded in correspondence on 19 March to Ms Hudson saying it was considering the Mater’s letter of the previous day and asked if the Mater had any other issues with the other action notified on 17 March. Ms Hudson responded at 11.02am the same day in a letter to Ms Mohle asking for urgent particulars addressing Mater’s concerns about risk to life, health, safety and/or welfare of any person. On 19 March 2014 it advised the QNU of further concerns over the proposed process set out above. The QNU advised the Mater in response to concerns raised, that the fourth and sixth items in its third notice were clear and unambiguous. In all, four separate pieces of correspondence were exchanged on 19 March.

[25] Evidence in the applicant’s case was provided fromMs Kylie Pippos, the Employee Relations Manager for the Mater, who provided an initial statement 1 and a supplementary statement.2 Ms Michelle Hill, the Director of Nursing and Midwifery Services for the Adult, Women’s and Children’s hospitals, provided three witness statements, the first made up of 247 paragraphs and dated 14 March 2014,3 and a supplementary statement made up of 134 paragraphs and also dated 19 March 20144 and a second supplementary statement of 77 paragraphs dated 24 March 2014.5 Ms Pippos was not required by the respondents for cross examination.

[26] The respondents provided witness statements from six witnesses who were Ms Vicki Shakoff, an Enrolled Nurse and QNU Organiser for the Mater Hospital, 6 Mr Nicholas Croft, a Registered Nurse employed at the Mater, and the QNU Mater Branch Secretary/Delegate,7 Ms Clemencia Correa, an Industrial Officer for the QNU,8 Mr Robert Parker, a Senior Organiser and Enrolled Nurse employed by the QNU,9 Mr Shawn Allen, a Registered Nurse employed by the Mater10 and Ms Sharyn Hopkins, a Professional Officer employed by the QNU11. Ms Correa was not required by the applicants for cross examination.

[27] Ms Pippos evidence was directed to setting out the factual history to the exchange of relevant communications between the parties, and how negotiations for a new agreement to replace the existing agreement have progressed since the commencement of those discussions in December 2012. Her evidence would become more particularly relevant in the s.424 matter, and particularly, a determination as to whether a suspension or termination was appropriate, if a balancing of those matters was required.

[28] The applicant maintained that the letters attached to the statement of Ms Pippos dated 18 March from Ms Hudson to Ms Mohle, 12 and the four letters exchanged between Ms Mohle to Ms Hudson on 19 March13 are critical as the QNU did not respond to the concerns raised by the Mater.

[29] It is helpful as background to summarise some of the evidence in Ms Hill’s first statement regarding the operations of the Mater. Ms Hill’s evidence included that across the three South Brisbane Hospitals the Mater has approximately 1000 patient beds. Ms Hill said that she had responsibility for approximately 650 of these. The remaining beds are connected with the Mater Private Hospital.

Mater Adult

[30] Ms Hill gave an overview of the operations of Mater Adult Hospital, which has a current in bed capacity of 160. The Mater Adult Hospital includes an emergency department, a Medical Assessment Unit, Ward 9A for respiratory patients, including those with cystic fibrosis which provides a high percentage of one-on-one care, Ward 9B a Medical ward and an ICU. Ms Hill said the Coranary Care Unit which includes a CNC to ensure, among other things, there are safety systems in place for women in the Mater Mothers with cardiac issues. An orthopaedic ward, surgical ward, oncology and palliative care ward. Ms Hill said the ICU includes staff with a high skill set in relation to treating perinatal patients and includes a high percentage of ventilated patients.

The Children’s Hospital

[31] Ms Hill gave evidence concerning The Mater Children’s Hospital with approximately a 153 bed capacity, including the Queensland Paediatric Cardiac Service within the Children’s hospital. Ms Hill explained that the major component of patients at the Children’s Hospital are complex paediatric patients. Further, there is a proportion of children treated there that are less than one year of age and many require one-on-one nursing care, which is called “being specialised”.

[32] In the PICU at a base level there are 14 nurses rostered per shift within the PICU, but that the number can flex up or down over the course of a year. The staffing includes clinical nurses, senior registered nurses and registered nurses. Within that structure there is always a team leader who does not have a patient workload, then one nurse per child, and in addition a float nurse. ECMO machines are a specialist supportive bypass mechanism directly attached to a child so that their heart can continue to function. For these children there are two nurses rostered on to care for each child at all times. This is so that one nurse can continue to monitor the child whilst the other can monitor the equipment. Ms Hill also described the functions of other wards in the children’s hospital.

The Mater Mothers Hospital

[33] The Mater Mothers hospital is the largest maternity service in Australia. Ms Hill said that as the Mater Mothers is a tertiary and referral hospital it has a significant presence of high risk patients. Ms Hill said the Mater Mothers is divided into three core services, Neonatology, Maternal Foetal Medicine Services and Ambulatory and Birthing services and maternity inpatient and Gynaecology services. Ms Hill gave evidence on high risk patients in these services.

[34] Across the South Brisbane Hospitals the number of nursing and midwifery headcount was approximately 2,200. Ms Hill described the specialist nature of some of the many nursing roles.

Section 418 Application

[35] It was common ground between the parties that the Commission should deal with the s.418 application first. As two separate applications have been filed together and witness evidence prepared and given for both the applicant and respondent on the basis of addressing both applications concurrently, it is important not to conflate the matters that are relevant for the purposes of the two separate applications.

[36] The s.418 application goes to whether the proposed action would or would not be protected industrial action, which is a different question as to whether the industrial action would threaten to endanger the life, the personal safety or health, or the welfare, of the population or part of it as contained in s.424. This part of the decision deals only with the s.418 question.

[37] Section 418 reads as follows:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[38] It is clear on the third notice having been served, that industrial action was threatened, pending or probable and that the seven forms of proposed action would all fall within the meaning of industrial action. It is also clear the action is being organised by the QNU.

[39] Industrial action is not protected if the notice requirements in s.414 have not been met. Section 414(2)(a) provides that the period of notice must be at least 3 working days. Section 414(6) requires that a notice given under the section must specify the nature of the action and the day on which it will start.

[40] The Mater submitted that the s.414 notice must be clear enough to the employer to ascertain the kind of action, the likely impact of the action and the timing of the action. 14

[41] The Mater submitted and I accept that deficiencies in a notice itself cannot be cured by evidence subsequently given about what was intended by the notice.

[42] The Mater also submitted that the adequacy of the specification of the nature of the proposed industrial action will depend upon the purpose of the notice requirement and the relevant circumstances, including the nature of the operations of the employer. The Mater referred to the decision in Telstra Corporation Ltd v CEPU 15 where the Full Bench said as follows:

[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point in contrast with the language in s170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including the size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. The following passage from the reasons for decision in David’s Distribution Pty Ltd v National Union of Workers, a case concerned with the interpretation of s.170MO(5), is apposite:

“[87] We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown during the period of notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees’ notice of bans by giving notice of a lockout of some or all employees.”

[43] The particular form of action the Full Bench considered in the Telstra 16 matter was a notice under s.414 in the following terms;

“The employee claim action will take the form of an unlimited number of indefinite stoppages of work by those CEPU members whose normal place of work is all States and Territories of Australia. The employee claim action will occur between the hours of 12.01am and 11.59pm on Wednesday 2 December, 2009.”

[44] The Full Bench in the Telstra 17 matter went on to say as follows;

“15 The indication that the action will be taken by CEPU members “in all States and Territories of Australia” might be an adequate specification if the type of action was defined more clearly. As it is, when the notice is read as a whole, the number, length and location of the stoppages which might occur are almost unlimited. The notice does no more than specify that there will be stoppages of an indeterminate number and length at locations at which CEPU members work.

16 We respectfully disagree with the Vice President’s conclusion that the notice specifies action involving all CEPU members at all worksites and that such a notice specifies the nature of the industrial action and complies with s 414(6). We refer to the reasons we have already given but some additional comments are appropriate. As we have indicated it is implicit that the description of the action contained in the notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action. In order to prepare for all eventualities contemplated by the notice in this case, Telstra would have to plan on the basis that every CEPU member would be on strike for the whole of the day in question. Yet that is not what the notice says. Given the nature of Telstra’s operations some greater specification would be required. Indeed, on one view the notice conceals more than it reveals about the industrial action that will in fact occur.” (my underlining added)

[45] The final paragraph in that Full Bench decision reads as follows:

“18 In concluding it should be emphasised that whether a particular notice meets the requirements in s 414(6) will depend upon the terms of the notice and the industrial context. Every case is different and each notice must be looked at having regard to all the relevant considerations.”

[46] The Mater also submitted that the purpose of a s.414 notice is to give the employer the opportunity to respond to the proposed industrial action by making relevant preparations, including making arrangements to deal with unavailability of labour and cited a number of authorities. 18

[47] The QNU submissions also referred to the decision in David’s Distributions and also Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd, 19 and finally Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Developments Pty Ltd20 Greenwood J at 56-58.

[48] Much of the later part of Ms Hills first statement addressed the various forms of industrial action proposed by the QNU in the first and second notices. That witness statement must be viewed in the context of having been prepared before the second notice was withdrawn by the QNU, and the third notice subsequently provided. Ms Hill’s second and third statements were prepared after the QNU provided its third notice. The second and third statements address various matters in the third notice which Ms Hill’s said are unclear to her, and she does not understand in a range of instances what the industrial action would look like in a practical sense.

[49] I will summarise her evidence below with that in mind and to the extent that she addressed the matter of whether the various forms of proposed action are unprotected, and compare that evidence with that of the witnesses for the QNU.

[50] Ms Hill’s evidence on the three forms of action described in the first notice went to that action causing a heightened level of anxiety in patients and others. This does not go to the question of whether the action is unprotected. The Mater did not press an argument that these forms of action were unprotected and are really only relevant for the purposes of the s.424 matter.

[51] The seven different forms of industrial action proposed by the QNU in the third notice were attached to first statement of Ms Pippos. 21 I will deal with each in turn.

Attendance at one 1 hour stop work meeting commencing at 7.30pm on 24 March 2014.

[52] Ms Hill said in her second statement she relied upon paragraphs 177 to 247 of her first statement with regard to this form of action. Ms Hill’s first statement was prepared in response to the first and second notices and not the third, which unlike the second withdrawn notice, provided the precise commencement time of the one hour stop work meeting. The evidence in her first statement going to the stop work meeting was overwhelmingly directed to the s.424 matter, but was also directed to the s.418 matter to the extent that the second notice was not clear about when the meeting would occur. The third notice addressed that issue. Paragraphs 20 and 21 of her second statement include that she does not know how many nurses will take the action, and therefore has no way of knowing how many nurses will stop work. Ms Hill said she has never had to cover more than 3 nurses in PICU for any given shift. Ms Hill said to her knowledge there had never been a situation where all of the 14 PICU nurses have been unavailable. Ms Hill said if that situation arose it would not be possible to get enough nurses with the skills to cover the situation. Ms Hill also expressed particular concerns about the NCCU. Again the attack on the first form of action in the notice is really directed to the s.424 matter. I am satisfied that the notice has specified the form of the proposed action and on that basis it is protected action.

Limitation on the performance of overtime work to rostered or authorised overtime commencing at 7.30pm on 21 March 2014, to continue indefinitely.

[53] This issue was addressed in Ms Hill’s first statement at paragraphs 162 to 170 in response to the second notice which was withdrawn. Her second statement simply adopted the first. Her third statement does state that the third notice does not provide any information or specificity to union members as to circumstances in which they should participate in the proposed action. 22 The third notice issued by the QNU amended the language to that set out above. The evidence given by witnesses for the QNU dealt with incidences where unpaid overtime is worked from time to time, and that the notice is directed to nurses or midwives performing unpaid overtime.I am satisfied the meaning from the words in the notice is clear and specifies the nature of the action.

A ban on the performance of duties relating to precepting commencing at 7.30pm on 21 March 2014, to continue indefinitely.

[54] Paragraphs 171 to 176 of Ms Hill’s first statement dealt with this claim, and was to the effect that Precepting includes supervision or guidance for junior nurses. Paragraph 23 of her second statement adopts the first statement. Ms Hill’s third statement responds to QNU witness statements.

[55] Ms Hill says at paragraph 172 of her first statement she does not understand what the ban on the performance of duties related to precepting will entail because the notice does not specify what duties are contemplated. Ms Hill’s concern was that the ban could be interpreted to mean a refusal to supervise or a refusal to intervene in work being undertaken by a more junior nurse or midwife.

[56] Ms Shakoff said this work related to the training and assessment of student and graduate nurses. 23 Mr Croft gave similar evidence. Mr Allen disputed Ms Hill’s view that Precepting extended to daily work and said it was limited to education of students and was formalised. He gave evidence that nursing students are supernumerary and are not counted in assessment of staff needs.

[57] Mr Allen said he did not agree with the view that precepting includes supervision or guidance given to a junior nurse or midwife during their daily work. Mr Allen said it applies to the education of students, and only in limited circumstances, the formal precepting component for the graduate students. The purpose of precepting, he said, was to provide “on the job” training. Mr Allen said students are supernumery and not counted in assessment of staffing needs nor can they perform nursing duties without direct supervision. Mr Allen said the students are not responsible for clinical care and that the ban did not extend to banning discussions and request for guidance between nurses.

[58] Ms Hopkins also gave evidence that Ms Hill had not accurately described precepting, and that precepting does not include guiding and supervising nurses and midwives in an informal way. Ms Hopkins said such guidance or supervision is just part of the normal practice of nursing which requires supervision, delegation and providing support to other nurses. Ms Hopkins said that at the Mater there is a precepting course that nurses who precept must participate in before they can precept. Further, it involves the allocation of a student or a graduate to a member of the nursing team on the ward they are working on and involves formal assessment of the student or graduate’s competency. 24

[59] I am satisfied the evidence supports a finding that this ban is sufficiently clear in that is pertains to the ‘on the job’ training for nurses, it does not relate to day to day supervision or guidance, which was the primary concern raised by Ms Hill about it.

[60] The evidence satisfies me that precepting is understood as a formal process and not informal supervision or guidance. The evidence also disclosed there were measures available to the Mater in order for it to prepare to take defensive measures in relation to this ban.

A ban or partial ban on activities which are not necessary for patient care in the registered nurses / midwives’ professional judgement and which are capable of performance by non-nursing staff commencing at 7.30am on 21 March 2014, to continue indefinitely.

[61] Ms Hill deals with this issue in paragraphs 24 to 53 of her second statement. Ms Hill said that she did not understand what this ban meant in a practical sense, for example was it time based, activity based, on and off, or of differing lengths of time.

[62] Ms Hill also said that she did not understand what was meant by the term ‘non-nursing’ staff, for example was it assistants in nursing, administrative staff, volunteers or medical staff. Ms Hill raised a concern such persons may not be trained to perform tasks that could fall within “activities not necessary for patient care’.

[63] Ms Hill said it was not clear to her what “activities” meant in a practical sense. Further, there is no clarity about what “not necessary for patient care in the registered nurses/midwives’ professional judgement” means. It could mean aspects of direct care, or it could mean aspects of indirect care, or it could mean both. Ms Hill said there was so much scope for individual interpretation and therefore nurses and midwives making different decisions. She said in her second statement that the Mater could not properly plan for this form of industrial action by reason of lack of specificity. 25

[64] Mr Allen gave evidence about the scope and practice of nursing, and non-core duties that tie up nurse’s time, including for example redirecting phone calls, chasing up appointment times, completing patient journey boards, directing members of the public and dealing with enquiries and paging. He said an administrative employee was allocated to the ward on day shift, a shared admin staff member on evening shifts on weekdays and Saturday mornings. Further, these non-core tasks can be allocated to the administrative staff member.

[65] Mr Croft gave evidence that nurses will not cease performing work where the non-nursing staff who could perform the work were not trained to perform the work, as alleged by Ms Hill.

[66] Ms Hill gave as an example in her evidence that a nurse might refuse to assist an elderly patient who is suffering from confusion to turn on the television. Mr Croft said this was incorrect, and while the function could be fulfilled by a non-nursing employee, such an activity is an everyday aspect of nursing and would continue to be performed. Mr Croft said all of the examples of work Ms Hill described in her second statement in paragraphs 50 to 53, would all continue to be performed by nurses. Mr Croft said in operating theatres non-nursing duties would include the stocking of non-essential supplies, and cleaning duties.

[67] I do not intend to detail all of the evidence of the witnesses for the QNU who gave evidence regarding this form of industrial action, but it became increasingly clear that there were inconsistencies between them about what was and was not included. For example, Ms Shakoff gave evidence that the NUM would have the final say, whereas other QNU witnesses did not agree with that proposition. Mr Croft said all clinical duties were excluded, whereas Ms Hopkins could not say what was excluded.

[68] Much of Ms Hill’s evidence went to the difficulties associated with assessing what is to be included or excluded from this form of action based on the professional judgement of an individual. On the evidence I am satisfied that lack of clarity in the fourth item does not permit the Applicant to make appropriate preparations. What may be in or out of the action is contingent on an individual’s “professional judgement”. Further, the notice could be interpreted differently by nurses with differing views or different levels of experience.

A ban or partial ban on computerised data entry and processing admissions which are capable of performance by non-nursing staff, commencing at 7.30am on 21 March 2014, to continue indefinitely.

[69] Ms Hill dealt with this 5th item on the third notice in paragraphs 54 to 90 of her second statement. Ms Hill repeated her earlier criticism of the fourth item that she did not understand in a practical sense what this fifth form of industrial action meant. Ms Hill said that based on her knowledge and experience “data entry” and “processing admissions” are two separate duties. Ms Hill said she did not understand what was meant by “partial ban”, on the same basis as she had stated earlier, that being it could be time based, activity based, on and off or differing lengths of time. Ms Hill repeated that she did not know what was meant by “non-nursing” staff.

[70] Ms Hill said she did not know what was meant by “computerised data entry” as the phrase is not properly clarified. Ms Hill said it could mean “clinical data entry” or general computer use.

[71] Ms Hill said it was not clear to her what “processing admissions” meant. Ms Hill said that there are various steps in relation to the admission of a patient, and nurses and midwives perform various aspects of the admissions process. She said it was not clear to her whether the term referred to all work a nurse or midwife may do associated with processing admissions or whether it was a reference to particular aspects of the process.

[72] Ms Hill said she could not comprehend a way the Mater could properly plan to deal with this form of action due to its lack of specificity and the lack of information available to the Mater about the action.

[73] She described the various data entry systems used across the South Brisbane Hospitals which included, Ormis (used in the perioperative environment), Matrix (used at Mater Mothers), EDIS (used in the emergency department), IPM (used across the three hospitals to track patients), Trendcarem (used at the hospitals for different functions), the Electronic Discharge Summary, the pre admission assessment tool, Picis (used in PICU), Guardian (used to capture and monitor CTG data), the telemetry monitoring system and a system for monitoring home care.

[74] Ms Hill said some aspects of data entry must be performed by someone with a health care background who understands the context of the information and who can identify potential issues for the patient.

[75] Ms Shakoff said the following tasks would continue to be performed by nurses during the period of protected action:

(a) processing admissions insofar as nursing involvement is required;

(b) patient care and planning;

(c) the use of ORMIS in the perioperative environment;

(d) the use of MATRIX;

(e) the use of EDI;

(f) the use of IPM;

(g) the use of Trend Care insofar as it is used by nurses at the Mater Hopsital (which I understand is limited);

(h) the electronic discharge summary used through Matrix;

(i) the pre-admission tool;

(j) PICIS;

(k) Guardian;

(l) the telemetry monitoring system; and

(m) the system for documenting home care.

[76] Ms Shakoff said this was because the tasks could not be performed by non-nursing staff. 26

[77] Mr Allen gave evidence that nurses perform the duties of inputting data into the Patient Management System (IPM). Mr Allen said that this data includes admission and transfer information, for example where a patient has been transferred from Emergency Department. Mr Allen said this data is non-clinical and can be performed by anyone. Mr Allen said any data input that requires clinical skills cannot be performed by non-nursing staff and will not form part of the industrial action. 27

[78] Mr Croft said that it is not proposed that the data entry, computerised or other, which requires the involvement of a nurse would cease to occur. This includes the components of admissions and discharges where a nurse’s involvement is required. Mr Croft said an example of where data entry would cease would be charge sheets for medical devices. This is a task that an administrative staff member could complete without nursing involvement. 28

[79] Ms Hopkins said that all relevant clinical data will continue to be entered where it is required to ensure patient care and safety. 29

[80] The nature of the expressions “computerised data entry” in the context of this particular employer’s operations, given the nature of the work performed by nurses and midwives, can involve a variety of things including clinical record keeping, computer analysis of clinical records or general computer usage. The expression “processing admissions” can also potentially involve all or some aspects of the admissions process. When these factors are then considered against the need for the Mater to attempt to decipher from that what is included in the ban by reference to the words “which are capable of performance by non-nursing staff” the picture becomes increasingly unclear. When the matter of how it would be determined what was capable of being done by non-nursing employee witnesses for the QNU indicated it was a matter for the professional judgement of the nurse. This gives rise to the same concerns expressed about this issue that have been discussed above about the fourth form of action.

A ban on completing paperwork including no base paging which are capable of performance by non-nursing staff, commencing at 7.30am on 21 March 2014, to continue indefinitely.

[81] Ms Hill had a similar criticism of the 6th item in the third notice which she addressed in paragraphs 91 to 110 of her second statement. Ms Hill said she did not understand what it meant in a practical sense and what action the relevant employees may take. She repeated her earlier criticism that she did not understand what was meant by “partial ban” or “non-nursing” and repeated her concerns about the training of persons who it is proposed would do these roles.

[82] Ms Hill said she did not understand what was meant by “paperwork including no base paging”. Ms Hill said there is no paperwork in base paging, and that they appear to be two separate things that are not related.

[83] She explained that base paging is a way in which many people are contacted throughout the South Brisbane Hospitals. The system involves picking up a telephone, dialling particular digits in a certain order and then entering the page number of the person to be contacted and your extension. That person then receives a beep on their pager that tells them they have to ring the person back. There is no paperwork involved in the process.

[84] She said it was not clear to her what was meant by “paperwork”. Ms Hill said if the word is taken in isolation from “base paging” then it could mean the completion of clinical documentation, whether in hard copy form or electronically. Ms Hill said it could mean just hard copy work or just electronic work.

[85] Ms Hill said it was not clear to her what measures Mater could implement in order to properly plan for the proposed industrial action, as insufficient information was available regarding the proposed action, in order for the Mater to implement contingency plans.

[86] It was not clear to her whether the intent of the sixth item on the third notice was that nurses and midwifes not be involved at all in the base paging process, such as that they would not return base pages for example.

[87] Ms Shakoff said that the ban did not include banning clinical documentation. All paperwork that is necessary for the care and safety of patients will continue to be completed. 30

[88] Mr Allen said on his ward the completion of paperwork that is not capable of being performed by non-nursing staff is limited to Trendcare information. Mr Allen said nursing notes are included in the Trendcare system. Mr Allen said this industrial action does not extend to patient charts, recording of observations and medications.

[89] He said the industrial action covers computerised base paging. He said this system is not the only method that paging can be conducted as it can also be done by ringing the base paging system and placing a message, ringing the switchboard and asking switchboard to page as staff member , or requesting an administrative staff member to place a page or use the computerised base page system.

[90] Ms Hopkins said that nurses would continue to contribute to the nursing elements of a discharge summary and would not refuse to prepare a discharge summary if nursing involvement was required. Ms Hopkins said at no time has the QNU proposed that clinical documentation will not be completed. 31

[91] The nature of the expression ‘paperwork’, and in light of its use with the phrase “including no base paging”, it is unclear in terms of what it extends to when it is defined by what a non-nursing employee can do. Defining the form of action by what a non-nursing employee can or cannot do again gives rise to the difficulties described above with regard to the fourth and fifth forms of action. It is again linked to the notion of the professional judgement of a nurse determining what falls in or out of the action depending on the particular circumstances. For similar reasons to those set out above, I am not satisfied such a description specifies the nature of action as required.

A ban or partial ban on answering any desk phone commencing at 7.30am on Friday 21 March 2014, to continue indefinitely.

[92] Ms Hill addressed this form of action at paragraphs 111 to 126 of her second statement. 32 Again Ms Hill said that she did not understand what it means in a practical sense. Ms Hill said there are various phones across the South Brisbane Hospitals and it was not clear to her what was meant by a “desk” phone. Ms Hill said some phones sit on a desk, whereas there are “deck” phones which are phones with an operating unit that sits on a desk but the handset is portable. She said that generally desks phones which are stationary on a desk are generally answered by administrative staff.

[93] Ms Shakoff and Mr Croft gave evidence that the ban was not proposed to apply to “deck” phones as would appear to be consistent with the words in the notice. Mr Allen explained that in his ward there are the following phones;

(a) Two desk phones, located on the administrative employee’s desk;

(b) One phone in the NUM office;

(c) One phone Resident Medical Officer’s office;

(d) One phone carried by the team leader;

(e) One coronary care phone;

(f) One red fire phone; and

(g) All patients have a bedside phone.

[94] Mr Allen gave evidence that the ban related to the two desk phones. Mr Allen said the ban related to answering desk phones, and that it does not relate to speaking on the phones. Mr Allen said the task can be completed by administrative staff. Mr Allen said all nurses remain easily contactable, and on his ward all nurses have pagers.

[95] Contrary to the view expressed by Ms Hill, I am satisfied the notice specifies the nature of the action and the Mater is capable of taking defensive action.

Other qualifications on forms of action

[96] In the course of the hearing, the QNU strongly emphasised the presence on the second page of the third notice qualifications placed on the forms of action. Whilst these matters are relevant for the s.424 matter, I do not think they provide any assistance to the QNU for the deficiencies in the three items on the third notice that I have discussed above.

[97] The Mater also argues that the QNU safety process set out in the notice is directed at patient safety and not complying with the notice provisions in s 414(2) of 3 working days and therefore, when the QNU identifies employees to participate in industrial action, or their work locations as part of the safety process, this would occur after the notice and would not lead to three clear days to respond to the proposed action.

[98] The Mater also argues that any arrangement reached between a QNU Organiser and a Nurse Unit Manager after the notice, which would be reached orally rather than in writing, would not lead to the Mater having written notice of the proposed industrial action.

[99] I am sympathetic to these arguments. The safety process offered by the QNU is important and a clear indication of the QNU’s commitment not to jeopardise patient safety during its industrial campaign, but a safety process is not a substitute for a proper notice under s.414.

Conclusion on s.418 Application

[100] Having considered the evidence I am satisfied that the 4th, 5th and 6th items on the QNU notice of 17 March do not specify the nature of the action proposed to be taken and therefore would not be protected action if taken. This is in large part because the nature of the action in each case is contingent upon the judgement of a particular individual. The action is a moving target for the employer, depending on the judgement of a particular employee which may vary from case to case. This causes the nature of the action described in the notice to be imprecise, and renders the Mater unable to make reasonable preparations to deal with the action as proposed in each of items 4, 5 and 6.

[101] As stated in Telstra 33 it is implicit that the description of the action contained in the notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action.In order for the Mater to be able to prepare for all eventualities contemplated by the fourth notice it needs to know what the particular activities are. It can’t be expected to be able to predict what those activities may or may not be given the way the notice is framed and therefore would be unable to appropriately plan for it.

[102] I am satisfied that items 1,2 and 3 on the first notice, and items 1,2,3 and 7 on the third notice are protected industrial action as they are clear and Mater is capable of make reasonable preparations to deal with the effect of each of those forms of industrial action.

[103] While s.418(3) makes clear that an order of the Commission does not have to specify the particular types of industrial action at which the order is directed, as I am satisfied that other forms of protected action are being taken, or are proposed to be taken in accordance with the first and third notices, I intend to issue an order that is confined to the action proposed in items 4,5 and 6 in the third notice.

[104] As the nature of the action that I have found to be unprotected is action that is threatened, pending or probable the order I make will be that it not occur.

[105] The form of the draft order otherwise sought in the application is consistent with recent authorities on what is appropriate for inclusion in a s.418 order and on that basis I do not intend to change other elements of the draft order provided, other than to make necessary amendments to clarify the specific nature of the industrial action that is not to occur. The order will operate from today’s date and apply for a period one month.

Section 424 Application

[106] Section 424 of the Act reads as follows:

424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.

[107] A Full Bench of the Commission in NTEU v University of South Australia 34 observed that within the scheme of the Act the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances35 and made reference to the Explanatory Memorandum to the Fair Work Bill 2008 which reads:

“The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaged in the action, that the industrial action cease - at least temporarily.

It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” 36

[108] Whether an order should be made under s.424 is a matter to be determined upon a consideration of all if the circumstances and having regard to the evidence and submissions. 37

[109] The main issue for consideration is whether the impact of the protected industrial action being taken and threatened by the QNU and its members is having or is likely to have the effect of endangering the life, the personal safety or health, or the welfare of part of the population, namely on the Mater and users of the Mater. 38

[110] Section 424(1) requires that an order must be issued suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable, if the FWC is satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population. That is once that level of satisfaction is reached on the facts it is no longer discretionary and an order must be issued.

[111] There must however be evidence in order for the commission to be satisfied. In determining the evidence requirements in matters of this nature a Full Bench of this Commission in Victorian Hospitals Industrial Association v ANF 39 referred to the following passage in the High Court matter of Coal and Allied Operations Pty Ltd v AIRC40 at 208 per Gleeson CJ, Gaudron and Hayne JJ where it was said as follows:

“....the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the Act involves a measure of subjectivity or value judgement......[A] decision under s 170MW(3) (b) that industrial action is ‘threatening....to cause significant damage to the Australian economy or an important part of it’.....is not simply a matter of impression or value judgement.... the decision maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question”.

[112] The Full Bench in Victorian Hospitals Industrial Association v ANF 41 said that the word “welfare” is commonly used and should be given its ordinary meaning, and conduct that puts a person’s physical or mental state at risk of material detriment, or materially hinders or prevents improvement in a person’s poor physical or mental state may qualify as conduct that endangers personal health and safety.

[113] Further, the Full Bench said that even if the conduct is not so serious that it amounts to an endangerment to life, it may still be a significant risk to “personal safety or health”, and that conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact must be more however than to merely cause inconvenience to the persons concerned, it must be such as to expose them to danger.

[114] Issues arise in hospitals in the ordinary course that can lead to delay, prolonged stays in emergency departments and cancellation of elective surgery. In the Victorian Hospitals Industrial Association v ANF 42 matter it was found that the protected action of members of the ANF was likely to result in an increase in such delays and problems, and to exacerbate the difficulties of managing the hospital. On that basis the Full Bench found that in the increased likelihood of such occurrences this would have the effect of putting the welfare and safety of patients at risk and jeopardising their health. The protected action would add extra pressure to the system.

[115] The Full Bench found that industrial action adversely affected the quality and timeliness of treatment, especially in ED’s and those requiring surgical procedures. In the Full Bench’s view the impact of that was of such a nature as to cause more than just inconvenience to the patients but to endanger their safety or health or their welfare. Further, it was considered by the Full Bench that this adverse impact on the users of the Victorian public health system will be aggravated as the industrial action by the ANF and its members continued to be implemented with the aim of reducing the capacity of the system through bed closures, cancellation of operating sessions and other bans.

[116] The Full bench was not persuaded that the ANF exemptions and notification processes were working in practice. The evidence was that there had been confusion about the processes and that there had been at least delays in the admission or transfer of patients due to the processes with relevant consequences. The ANF conceded as much but said that initial problems were being addressed.

[117] In another Full Bench decision in Tyco Australia v CEPU 43 involving the requirement to consider whether industrial action taken by Service Technicians on out-of-hours call outs to service defects or failures in fire protection systems and the completion of reports and other paperwork meet the requirements of s.424(1)(c). The Full Bench was not satisfied that the employer could not put into place arrangements that would assist in minimising the risks associated with the bans. The Full Bench took into account that the employer could seek the assistance of the relevant union, in that matter the CEPU, who it was said had undertaken to provide assistance in relation to call outs to attend critical faults occurring at hospitals, nursing homes, correctional facilities or in Alarm Signalling Equipment at any location.44

 41   [2011] FWAFB 8165.

 42   [2011] FWAFB 8165.

 43   [2011] FWAFB 1598.

 44  Tyco Australia v CEPU [2011] FWAFB 1598, [29].

 45   [2011] FWAFB 8165.

 46   [2011] FWAFB 8165.

 47   Exhibit 13 Statement of Sharyn Hopkins, paragraph 11 and annexures SLH 1,SLH 2, SLH 3, SLH 4 and SLH 5.

 48  Tyco Australia v CEPU [2011] FWAFB 1598.

 49 [2000] 203 CLR 194.

 50   [2009] FWA 44.

 51   [2011] FWAFB 8165.

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