Minister for Industrial Relations for the State of Victoria v Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology

[2017] FWC 4610

[2017] FWC 4610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424—Industrial action

Minister for Industrial Relations for the State of Victoria
v
Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology; Health Services Union; Australian Nursing and Midwifery Federation
(B2017/756)

COMMISSIONER BISSETT MELBOURNE, 8 SEPTEMBER 2017

Application to suspend or terminate protected industrial action endangering life etc.

Reasons for the decision

Application by the Minister for Industrial Relations for the State of Victoria

[1] On 23 August 2017 the Minister for Industrial Relations for the State of Victoria (the Minister) made an application to the Commission to terminate industrial action being engaged in by Specialist Diagnostic Services Pty Ltd (T/As Dorevitch Pathology) (Dorevitch); the Health Services Union of Australia (trading as Health Workers Union) (HWU); and the Australian Nursing and Midwifery Federation (ANMF) pursuant to s.424 of the Fair Work Act 2009 (FW Act).

[2] The application could not be determined within five days as required by the FW Act. I therefore issued an Interim Order suspending the industrial action on 25 August 2017 1 (the suspension Order).

[3] The application by the Minister was heard by me on 4 September 2017. The application was not opposed at the hearing by Dorevitch, the HWU or the ANMF.

[4] Being satisfied that the requirements of s.424 of the FW Act were met, an order terminating the industrial action was issued. 2 The parties were advised of my decision at the conclusion of the hearing for this application and that the reasons for decision would be issued in writing following the conclusion of the hearing. I now publish my reasons.

Background

[5] On 15 June 2017 the Commission granted an order for a protected action ballot with respect to those members of the HWU employed by Dorevitch and who would be covered by the proposed agreement. The ballot was declared on 13 July 2017 with the proposed industrial action supported by a majority of those who voted in the ballot.

[6] On 18 July 2017 the Commission granted an order for a protected action ballot of those members of the ANMF employed by Dorevitch and who would be covered by the proposed agreement. That ballot was subsequently declared.

[7] On 30 July 2017 the HWU served a notice of intent to take protected industrial action (a Notice) on Dorevitch. Pursuant to this Notice members of the HWU took industrial action in the form of a 24 hour stoppage of work on 7 August 2017.

[8] On 1 August 2017 the HWU served a further Notice on Dorevitch and from 5 August 2017 commenced taking industrial action in the form of speaking to patients, their families and communities about the purpose of the campaign during working hours.

[9] On 2 August 2017 the HWU served a further Notice on Dorevitch and from 8 August 2017 commenced taking industrial action in the form of:

i. refusing to undertake any work outside the starting and finishing times of rostered ordinary hours of work;
ii. providing patients, their families and the community with written campaign materials during working hours;
iii. wearing campaign t-shirts during work hours;
iv. wearing campaign badges during working hours;
v. displaying posters, slogans, colours in the workplace containing campaign information; and
vi. writing messages representing the concerns of employees’ regarding the enterprise agreement negotiations on the employer’s vehicles.

[10] On 3 August 2017 the HWU served a further Notice on Dorevitch and from 9 August 2017 commenced taking industrial action in the form of:

i. refusing to operate the employer’s vehicles that have an odometer reading in excess of 200,000 kilometres;
ii. refusing to operate the employer’s vehicles that have not been serviced in accordance with manufacturer guidelines;
iii. refusing to clean non-clinical areas;
iv. refusing to use personal telephone for work purposes; and
v. refusing to operate facsimile and scanning machines.

[11] On 6 August 2017 the HWU served a further Notice on Dorevitch and on 14 August 2017 commenced taking industrial action in the form of a 24 hour stoppage of work.

[12] On 7 August, 8 August and 9 August 2017 Dorevitch served Notices on HWU of its intent to take employer response action in the form of locking out employees named in the Notices from the workplace from the date specified in the Notice until further notice. These Notices resulted in approximately 89 employees being locked out of the workplace.

[13] On 9 August 2017 the HWU served a further Notice on Dorevitch of employee response action in the form of a stoppage of work from 8.15am on 10 August 2017 to 6.00am on 15 August 2017.

[14] On 13 August 2017 the HWU served a further Notice on Dorevitch and from 21 August 2017 took industrial action in the form of a 24 hour stoppage of work from 12.00am on 21 August 2017.

[15] On 17 August 2017 the HWU served two further Notices on Dorevitch of intent to take industrial action in the form of:

a) 24 hour bans on the performance of work from 12:00am on the following dates:

i. 25 August 2017
ii. 28 August 2017
iii. 30 August 2017
iv. 1 September 2017
v. 4 September 2017
vi. 6 September 2017
vii. 8 September 2017
viii. 11 September 2017
ix. 13 September 2017
x. 15 September 2017

b) 12 hour bans on the performance of work from 7:00am on the following dates:

xi. 26 August 2017
xii. 27 August 2017
xiii. 29 August 2017
xiv. 31 August 2017
xv. 2 September 2017
xvi. 3 September 2017
xvii. 5 September 2017
xviii. 7 September 2017
xix. 9 September 2017
xx. 10 September 2017
xxi. 12 September 2017
xxii. 14 September 2017
xxiii. 16 September 2017
xxiv. 17 September 2017

[16] On 18 August 2017 the HWU served a Notice on Dorevitch of employee response action in the form of a stoppage of work from 12.05pm on 18 August 2017 until notified by the HWU in writing that the employee response action would cease.
[17] On 22 August 2017 the ANMF served a Notice on Dorevitch of its intention to take protected industrial action from 7.00am on 30 August 2017 in the form of a stoppage of work “from 2 hours to 24 hours” and a refusal to undertake work outside the starting and finishing times of rostered ordinary hours of work.

Legislation

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.

The approach to the question to be determined

[18] In Victorian Hospitals’ Industrial Association v Australian Nursing Federation 3the Full Bench of Fair Work Australia (FWA) said:

[48] The main issue for consideration in this matter concerns the impact that the protected industrial action being taken and threatened by the ANF and its members is having or is likely to have on the Victorian public health system and the users of the system. Subsection 424(1) requires that FWA must make an order suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable if we are 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.

[49] It is clear that there must be an appropriate evidential basis to found such a satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v AIRC 4 in considering somewhat similar provisions in the Workplace Relations Act 1996:

... 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 judgment... [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 judgment... 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. 5

[50] We have therefore given careful consideration to all the evidence and submissions presented in the proceedings in reaching our conclusions.

[51] We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s.424(1), including the references to “welfare” of the population and the concept of endangerment. These are commonly used words and expressions which are widely understood in the community and which should be given their ordinary meaning. Conduct that puts a person’s physical or mental state at risk of material detriment - or that materially hinders or prevents improvement in a person’s poor physical or mental state - may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. 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 of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger.

[19] In National Tertiary Education Union v University of South Australia 6 a Full Bench of FWA found 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 circumstances and where significant harm is being caused by the action.” This finding however needs to be tempered by the language of s.424 of the FW Act which refers to whether the industrial action “has threatened” or “would threaten” such that the harm is not required to be in existence at the time of consideration of the application.

[20] In Victoria v Health Services Union of Australia 7 the Full Bench of the Australian Industrial Relations Commission said:

The whole of the passage “the life, the personal safety or health, or the welfare, of the population or of part of it” comprises common words and we do not think it helpful to attempt to define them. It will be a matter for the Commission, in each case before it, to determine whether or not it is satisfied that industrial action is threatening to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.

[21] In Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union 8 Kaufman SDP, after considering the decision in F & Others v National Crime Commission9 determined that the approach to the question as to whether the action proposed in the matter before him would “threaten to endanger” should be “on the basis of probabilities rather than possibilities” and also that he “must be satisfied that the protected action would threaten to endanger, not endanger.”10 That is, in determining if the protected action would threaten to endanger life etc it must be on the basis of the probability of the action doing so, not the mere possibility.

[22] This approach was adopted by Spencer C in Tyco Australia Pty Ltd t/a Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. 11

[23] I have beenmindful of these principles in reaching my decision

Evidence and submissions

[24] Uncontested evidence was given for the Minister by Associate Professor Andrew Wilson, Chief Medical Officer of the State of Victoria; Ms Colleen Boag, Chief Executive Officer of the Yarram and District Health Services; Ms Vicki Farthing, Executive Director of Nursing at the Gippsland Health Service; and Dr Margaret Grigg, Executive Director Health Services Performance and Commissioning, Department of Health. Uncontested evidence was also given by Ms Diana Asmar, Secretary of the Health Services Union No. 1 Branch (HWU). None of the witnesses were required for cross examination.

[25] I have accepted the evidence as provided in the written witness statements of each of the persons named above.

[26] As a result of the evidence given for the Minister I am satisfied that pathology services are a critical component of the delivery of health care services to the population. Further, I accept that disruption to pathology services may have an adverse impact on the general provision of health care services. Such an adverse impact threatens to endanger the life, personal safety and health of part of the population. I am satisfied that disruption has occurred to date through the non-availability of pathology services for a period of time in the Murray Primary Health Network, delays in the Yarram and District Health Services and the Gippsland Health Services.

[27] Further, I am satisfied that, should the industrial action resume, it will further adversely affect the provision of health care services through delays in pathology services in hospitals and through community collection centres.

[28] I am also satisfied that, whilst there are alternative pathology services, these do not necessarily operate in all areas in which Dorevitch operate and that it may cause inconvenience to some patients who may have to visit their treating doctor to receive a new referral for services otherwise provided on an on-going basis by Dorevitch.

[29] As a result of the witness evidence of Ms Asmar I am satisfied that industrial action is threatened and probable if the current suspension Order is lifted and no order is issued in its place. Further, I am satisfied that the action taken to date and the proposed industrial action in the notice of 17 August 2017 and 18 August 2017 threatens to endanger the life, personal safety or health or welfare of a part of the population.

[30] I am further satisfied, on the basis of the submissions of the ANMF that, if the current order suspending industrial action is lifted and not replaced by another order restricting industrial action, the action notified by it would resume or commence such that action is threatened and probable.

[31] On the basis of the evidence and submissions of the HWU and the ANMF I am satisfied that industrial action is therefore a probability.

Conclusion

[32] I am satisfied that the application has properly been made and that the Minister is entitled to make the application pursuant to s.424(b)(iia). I therefore have jurisdiction to deal with the application.

[33] The question before me is not complex. As it relates to this application, the first matter to determine is if the protected industrial action is threatened and if it would threaten to endanger the life, the personal safety or health, or the welfare of a part of the population.

[34] The industrial action in question is the action subject to the Notices of the HWU of 17 August 2017 (consisting of substantial stoppages of work across a three week period) and 18 August 2017 (consisting of employee response action of a stoppage of work until such time as notified by the HWU that it cease) and the notice of the ANMF of 22 August 2017 (including stoppages of work and bans on working outside rostered hours).

[35] It is apparent from the evidence of Ms Asmar and the submissions of the HWU and ANMF that, should the current suspension order be lifted, the industrial action will re-commence. Both unions are adamant that they have not ceased their respective campaigns.

[36] The second matter I must be satisfied of is that the industrial action threatens to endanger the personal safety or health, or the welfare of a part of the population. It is not necessary that I be satisfied that the industrial action is endangering the life, the personal safety or health, or the welfare of a part of the population or that it will endanger the life etc of a part of the population. I only need to be satisfied that the action “threatens to endanger”.

[37] I found above, on the basis of the evidence, that the action taken to date did pose such a threat. There is no basis to assume that the threat does not exist and such a threat would re-emerge should the current suspension Order be lifted.

[38] I am therefore satisfied, on the basis of the evidence of the witnesses for the Minister that the industrial action will threaten to endanger the life, the personal safety or health, or the welfare of a part of the population through the limitation on the availability of pathology services.

[39] Thirdly, having been satisfied of these factors there is a requirement that an order be made. The only decision is whether the order should be to suspend or terminate the industrial action. In this case, given the severity of the implications of the industrial action, and that the application seeks it, I am satisfied that the industrial action be terminated.

[40] For these reasons I reached my decision and issued the Order on 4 September 2017.

Extension of the post-industrial action bargaining period

[41] The parties were advised that an Order would be issued terminating the industrial action pursuant to s.424 of the FW Act. Dorevitch, along with the HWU and the ANMF, made an application for an extension to the 21 day post-industrial action bargaining period pursuant to s.266 of the FW Act.

[42] Being satisfied that there were no other bargaining representatives, I waived compliance with the Fair Work Commission Rules 2013 pursuant to R.6 and accepted the application in the form it was made.

[43] I was satisfied that the post-industrial action bargaining period had commenced, as it commences on the day on which the termination of industrial action instrument is made. 12 I was also satisfied that the parties had not settled all matters in dispute between them. I therefore extended that period to 42 days in accordance with s.266(3) of the FW Act.

COMMISSIONER

Appearances:

R. Nelson of Counsel for Specialist Diagnostic Services T/As Dorevitch Pathology

C. Dowling of Counsel for Minister for Industrial Relations for the State of Victoria

S. Crawford for Health Services Union of Australia T/As Health Workers Union

L. Kelly for Australian Nursing and Midwifery Federation

Hearing details:

2017.

Melbourne

September 4.

 1  PR595602.

 2   PR595823.

 3   [2011] FWAFB 8165.

 4 (2000) 203 CLR 194.

 5   Ibid at 208 per Gleeson CJ, Gaudron and Hayne JJ.

 6   [2010] FWAFB 1014.

 7   Print L9810.

 8   [2009] FWA 44.

 9 [1998] FCA 393.

 10   [2009] FWA 44 at [28]- [29].

 11   [2010] FWA 8050.

 12 Pursuant to s.266(2) of the FW Act the termination of industrial action instrument includes an order under s.242 of the FW Act).

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<Price code C, PR595849>