Royal Flying Doctor Service (Queensland Section) Limited v Australian Nursing and Midwifery Federation

[2023] FWC 3457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.418—Industrial action

Royal Flying Doctor Service (Queensland Section) Limited
v

Australian Nursing and Midwifery Federation

(C2023/7957)

DEPUTY PRESIDENT DOBSON

BRISBANE, 21 DECEMBER 2023

Application for an order to stop unprotected industrial action – Notice not compliant with s.409(2) – Order issued

An application for an order under s.418 of the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) on 19 December 2023 by Royal Flying Doctor Service (Queensland Section) Limited (the Employer/Applicant). The application was accompanied by the notices sent by the Australian Nursing and Midwifery Federation (ANMF/the Union/Respondent) regarding industrial action and the Employer’s response to these.

History

This is the third application pursuant to s.418 of the Act filed in respect of these parties and the history of the matters was set out in [2023] FWC 3106. The first previous matter dealt with an issue regarding the vote conducted by the ballot agent and the notice produced prior to a correction. I ordered that no planned industrial action on the basis of the notice given occur and that it would be open to the Union to produce another notice. The second previous matter dealt with a second notice of intention to take protected industrial action and specifically whether the notice was defective. In that matter, I found that the notice was defective in respect of some of the actions that were to be taken. That is that they did not provide sufficient information to enable the Applicant to take action to mitigate the impact of that action and I issued orders to stop some of the intended industrial action deriving from the Respondent’s Notice of 20 November 2023.

The present application has been made by the Employer as a result of a notice of protected industrial action issued by the Respondent on 14 December 2023 (Notice).[1]

On 19 December 2023, Deputy President Lake issued directions for the filing of material by the parties and listed the application for hearing at 10:30am on 21 December 2023. Evidence was provided by the Employer at 9:38 am on 20 December 2023 and at 5:00pm on 20 December 2023 by the Respondent. On 21 December 2023 the matter was reallocated to me to be heard.

At the hearing, Mr J.E Murdoch KC, appeared as counsel for the Employer, instructed by Ms Cheryl-Anne Laird & Mr Jack Fuller of Mazars, together with Ms Judy Hawkins, Executive General Manager People and Culture of the Employer. Ms Courtney Trevascus & Mr Simon Ong, Industrial Officers of the Union, appeared for the Respondent.

Permission to appear

The Applicant sought leave to be represented before the Commission by counsel and their lawyers. The Respondent had no objection to the Applicant being legally represented.

Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

Section 596(2)…

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide on an application made by the Royal Flying Doctor Service (Queensland Section) Limited (the Employer) under section 418 of the Fair Work Act 2009 (the Act) to stop industrial action organised by the Australian Nursing and Midwifery Federation (the Union). This is the third application made by the Employer in relation to the Union in this matter, and follows previous decisions by the FWC in which industrial action was ordered to stop. The Union had issued a notice of protected industrial action on 14 December 2023, which the Employer argued was not protected as it was not authorised by a protected action ballot order (PABO) and therefore not in accordance with section 409(2) of the Act.

The key issue for the FWC to decide was whether the industrial action proposed in the Union’s notice was authorised by the PABO. The Union argued that the action was authorised by the PABO as it had been approved by a majority of the Union members who voted in the ballot. The Employer submitted that the industrial action proposed in the notice was not authorised by the PABO as it sought to ban the recording of clinical data, which was not within the scope of the PABO questions. The FWC found in favour of the Employer’s argument, holding that the industrial action proposed in the notice fell outside the scope of the PABO questions and was not authorised by the PABO. The FWC therefore ordered that the industrial action be stopped.

In reaching its decision, the FWC considered the evidence of Mr Lee Poole, the Executive General Manager Nursing and Clinical Services at the Employer, who provided evidence that the data to be banned was clinical data and clinically relevant, and was not non-clinical data as described in the PABO questions. The FWC found that the difference between clinical and non-clinical data was not pedantic, but rather was of significant consequence in the context of the Employer’s operations. The FWC also rejected the Union’s argument that the PABO questions were clear and that the meaning of non-clinical data was to be determined by the ordinary industrial English meaning of the words, rather than by the subjective understanding of the Employer’s witness. The FWC held that the industrial action proposed in the notice was not authorised by the PABO as it did not fall within the scope of the PABO questions, and therefore the action was not protected.

The FWC ordered that the industrial action proposed in the Union’s notice be stopped.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established