Royal Flying Doctor Service (Queensland Section) Limited v Australian Nursing and Midwifery Federation
[2023] FWC 3106
•25 NOVEMBER 2023
| [2023] FWC 3106 |
| 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
(C2023/7178)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 25 NOVEMBER 2023 |
Application for an order to stop unprotected industrial action – Notice not compliant with s.414 – Notice partially non-compliant – 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 23 November 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 second 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 3025. The 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 present application has been made by the Employer as a result of a notice of protected industrial action issued by the Union on 20 November 2023 (Notice).[1] The Employer, upon receipt of the Notice wrote back to the Union on 22 November 2023, alleging that the Notice was fatally defective for the following reasons:
“Examination of the content of the notice manifests its multi-faceted inadequacy
As to action 1: a ban or partial ban on correctly recording non-clinical data
(a) “ban or partial ban” is vague and leaves RFDS to speculate as to what is intended;
(b) “ban or partial ban on correctly recording” (our underlining) may, by inference, mean that incorrect data will be recorded; does it mean that the ban will have nurses recording incorrect clinical data on records?
(c) The reference to “ban or partial ban on correctly recording non-clinical data” (our underlining) is too vague and uncertain to provide RFDS with any meaningful capacity to prepare to deal with the action in is operational context. In particular, all data recorded by nurses during the course of their duties is recorded in a clinical context and is clinically relevant. There is no identification of the criteria to be used by ANMF to distinguish between clinical and non-clinical.
(d) The example given in para 1(b) of the notice reads “Medicare Item No/Medical Chest/WorkCover details” and start and finish times on Clinical Patient Record (CPR) forms.” These are patently items of a clinical nature. Yet, they are provided as examples of “non-clinical data;”
(e) Likewise, maintenance of patient journey logs are clearly related to clinical data (see para 1(a) in the notice);
(f) Aviation Flight Record (AFR) data is also, in the context of aeromedical emergency and/or transfer services, data with the character of a clinical record;
(g) Further, the reference in para 1(a) of the notice of “patient journey logs on Electronic Health Records (HER)” as examples of “non-clinical data” is contradictory; records of that kind are key clinical records in the context of an aeromedical emergency and/or transfer services provider at the forefront of emergency medical assistance;
(h) In summary, paragraph 1 of the notice is vague, uncertain, ambiguous and contradictory. It conceals more than it reveals.
As to action 2: a ban or partial ban on making Electronic Health Records (EHR) in completing Health and Aviation Logistics Online (HALO) forms and instead making aeromedical transfer records on paper with a pen
(a) The reference to “ban or partial ban” creates uncertainty as to the nature of the ban;
(b) On the one hand, EHR and HALO will be subject to a ban or partial ban; on the other, “making aeromedical transfer records on paper with a pen,” means that the notice, by using different wording on expressions, leaves it unclear whether EHR and HALO will be done in handwriting or not done at all;
(c) Action 2 would, if fully implemented, materially change the method of recording the relevant class of data from electronic to a manual/paper based system. The reference to “partial ban” leaves open the possibility of a hybrid system of part electronic, part manual recording. Further, it opens up the consequential question of what data will be electronically recorded and what will be manual? The multiple options resulting from the generalised expression used in the notice provide no meaningful basis for the employer to make preparations to deal with the effect of the ban or partial ban.
As to action 3: a ban or partial ban on duties directly related to or in association with the employer’s solicitation of donations, such as attending or participating in community meetings
(a) The reference to “ban or partial ban” creates uncertainty as to the nature of the ban;
(b) The example of the action to be subject to the ban i.e. “such as attending or participating in community meetings” is ambiguous. Does it mean a ban on all attendance at community meetings? Further, what is the difference between “directly related to, or in association with?”
(c) Further, the use of the expression “such as” followed by the example of “community meetings” leaves open to speculation the other bans or partial bans which may be imposed under paragraph 3.
As to action 4: a ban or partial ban on attending staff meetings.
(a) The reference to “ban or partial ban” creates uncertainty as to the nature of the ban. The employer is left to speculate whether this means any or all of in-person meetings; telephone meetings; zoom meetings etc. Also, what qualifies as a staff meeting? Does it include a pre-arranged call from a supervisor to discuss clinical matters?
(b) Does the ban extend to pre-flight meetings of the crew for a specific flight? On one interpretation it would; on another, perhaps not; RFDS will be left guessing.
No detail as to start time and duration of the bands has the consequence that the notice does not provide RFDS with reasonable opportunity to take remedial action. In the operational context of the RFDS, which may have nurses engaged at any time of the day or night, it is important that the actual time of day for commencement of a ban be known. This is to ensure adequate steps can be taken to protect the welfare of patients and the interests of associated hospitals, doctors and other health professionals.
The bald (sic) statement in the notice: “The industrial action will not be taken in such a way as to endanger the life, health, safety and/or welfare of any person” is so vague as to render it impossible for the RFDS to know what steps it needs to take to mitigate the proposed bans. Who will determine the “way” in which action will be taken. Who will determine hat ban or partial ban will not be classed as one that could endanger the life, health, safety and/or welfare of any person? Quite likely, nurses from base to base will form different views on the interpretation of the qualification to the notice.
The General and specific content of the notice is so broad, non-specific, ambiguous and contradictory, that it is not reasonably practical for FRDS to know what it will be confronted with on and from 28 November 2023. The RFDS cannot therefore plan and make reasonable preparations to deal with the effect of the industrial action.
…”
On 22 November 2023, the Respondent replied to the Applicant’s correspondence and indicated that they rejected the conclusion that the notice was defective and maintained that the actions were sufficiently clear. The Respondent referred to s.414(6) of the act which does not require a time but rather a date for the action to commence. The Respondent further rejected the claim that the data subject to the industrial action is clinical in nature, and rather referred to the principals set by the Nursing and Midwifery Board of Australia (NMBA) and the Australian Commission on Safety and Quality in Health Care (ACSQHC). Nursing and midwifery clinicians would still be required to ensure that “essential” information is documented as it relates to patient care which ensures relevant, accurate, complete, and up-to-date information and that it can be taken in several forms, including paper-based systems.
On 23 November 2023, I issued directions for the filing of material by the parties and listed the application for hearing at 11:30am on 24 November 2023. Evidence was provided by the Employer at 3:32pm on 23 November 2023 and at 11:00am on 24 November by the Union.
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. Mr Kevin Crank & Mr Simon Ong, Industrial Officers of the Union, appeared for the Respondent and were accompanied by several employee bargaining representatives/delegates.
Permission to appear
The Applicant sought leave to be represented before the Commission by counsel and their lawyers. The Respondent objected 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) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act.[2] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[3]
The Applicant submitted that whilst they had a Human Resources function, it didn’t include any industrial relations specialist nor any lawyers or advocates with industrial relations experience. Further, considering both parties filed authorities, the Applicant’s Representative submitted that in the analysis of these authorities and the principles derived thereof, the Commission would be assisted in effectively dealing with the matter with the assistance of the legal representatives. The Respondent objected to the Applicant’s Representation on the basis that the industrial official with carriage of the matter was not a lawyer and was capable of dealing with authorities and analysing them. The Respondent further submitted that the involvement of the Applicant’s legal representatives would hinder the effective dealing with the matter and that the application represented an opportunity taken by lawyers to try to defeat protected industrial action. The Respondent further submitted that the nature of the application is exactly that which gives rise to the Commission’s requirement that Legal Representation could not occur without the leave of the Commission.
Additionally, considering the potentially complex nature of the matter, I determined to grant leave to the Applicant to be represented on the basis it would assist the Commission to deal with the matter more efficiently,[4] inter alia, in light of the expeditious requirements to deal with this particular application under statute. Further, I note that it would be unfair for the Employer given they lacked the expertise to represent themselves[5] and finally, that the Union were very experienced in matters of this nature and it would be unfair not to allow representation taking into account fairness between the parties.[6]
Procedural matters
The application sought orders be made by the Commission against:
(a) Members of the Australian Nursing and Midwifery Federation (ANMF) employed by the Royal Flying Doctor Service (Queensland Section) Limited;
(b) The ANMF;
(c) Kate Veach; and
(d) All other officers, officials, employees of the Queensland Branch of the ANMF.
Legislative context
The application has been made pursuant to s.418 of the Act. Section 418 provides:
“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.”
The meaning of industrial action is contained at s.19 of the Act:
“419 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.’
Applicant’s Submissions
The Applicant submitted that the non-compliance of the notice rendered it fatally defective. The notice, according to the Applicant, failed to describe the nature of the intended industrial action so as to sufficiently put the RFDS in a position to make reasonable preparations to deal with the effect of the action in accordance with s.414 of the Act.
The Applicant referred to the summary of the Full Bench Decision of Fair Work Australia in Telstra Corporation Limited v CEPU [7] in determining whether a notice meets the mandatory notice requirements of section 414(1) and (6) of the Act. Their Honours described ss414(1) and (6) as cast in “more positive terms” and that the purpose of the notice requirement in the relevant circumstances is to “give the employer the opportunity to respond to the application by making relevant preparations.” Their Honours continued to observe that “whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the time at which the action is to occur and the employees potentially taking the industrial action.” The Applicant in the present case highlighted that because the notice does not give a start time for commencement of the action on 28 November, nor does it provide for the period or periods of the action, that the notice is deficient.
The Applicant further specified that the contents of the notice created further inadequacy and set out their concerns in their notice as at paragraph [3] above.
The Applicant stated that the lack of detail as to the start time and duration of the bans has the consequence of not affording them reasonable opportunity to take remedial action. They contextualised the issue in the respect that their operation may cause them to have nurses engaged at any time of the day or night.
The qualification from the Respondent in their notice that “the industrial action will not be taken in such a way as to endanger the life, health, safety and/or welfare of any person”, is considered by the Applicant to be so vague as to render it impossible for them to know what mitigating steps are necessary. The Applicant submitted that without clarification on the ‘way’ that industrial action will be taken would and could likely lead to nurses from depot to depot forming different views on the interpretation of the qualification.
The Applicant submitted that the content of the notice was so broad, non-specific, ambiguous, and contradictory that it would not be reasonably practical for them to know what it will be confronted with on and from 28 November 2023 and that it therefore couldn’t plan or make reasonable preparations to deal with the effect of the industrial action.
The Applicant highlighted that they are an aeromedical emergency and/or transfer service and therefore it is self-evident that the keeping of correct clinical records is vital to the integrity of its operations. Their operations directly impact on the welfare of persons who are at risk and that there is no room for error or system failure from record keeping. The Applicant submitted that they needed to know, with precision, the nature and duration of every ban or partial ban.
Ms Laird’s evidence
Ms Cheryl-Anne Laird is a Partner at Mazars (the Applicant’s Representative in the current matter) and the appointment bargaining representative for the employer. Ms Laird’s evidence provided the notices that had been sent between the Applicant and Respondent in relation to the industrial action and caused the Application to be filed in the Commission.
Ms Laird’s evidence was not objected to by the Respondent and I accept her evidence.
Mr Poole’s evidence
Mr Lee Poole is the Executive General Manager Nursing and Clinical Services at the Applicant. Mr Poole has over 10 years of senior leadership and Board experience and holds qualifications in Nursing, Business Management, Emergency Nursing, Midwifery and in Nurse Practitioner Studies (Aviation)
Mr Poole stated that the examples provided in the notice of proposed industrial action provided examples of non-clinical data however, were in his view, clinically relevant data that could not properly be characterised as “non-clinical data”. Specifically, Mr Poole referred to the example in the notice of:
“(a) the times for “crew ready”, “aircraft door close at base”, “arrival at handover destination” and “patient handover date/time” in the patient journey logs on Electronic Health Records (EHR)”
Mr Poole stated as an example, that treatment decisions post-heart attack as to whether lysis (a medication) is provided or if the decision is made to go directly to an angiogram are determined by the time of onset of the conditions and time to treatment. Of particular concern to Mr Poole was the reference that “patient handover date/time” was non-clinical data.
Mr Poole identified that other services, such as the Queensland Ambulance Service, also record information referred to in the notice as “non-clinical” as the details recorded are clinically relevant.
Mr Poole stated that it was not clear to him from the notice what the intention is for the information referred to as “Medicare Item No/Medical Chest/WorkCover details” and start and finish times on Client Patient Record (CPR) forms” and as “Aviation Flight Record (AFR) data”.
Mr Poole through Ms Laird sought clarification from the Union in relation to the intention regarding the recording of “patient handover date/time” as he was concerned that such information had been identified as non-clinical data. The response from the Union was that the data would be recorded by other means including on paper or electronically. Mr Poole stated that this was critical information and the Applicant needed to know how and where it would be recorded.
In relation to records being created on paper with a pen, Mr Poole stated that the Applicant has procedures in place for times when the EHR systems were unavailable and can enact these procedures where required. In recognition of the importance of the information that is collected, Mr Poole stated that the Applicant would need to know when they would be required to enact these procedures and whether or not all information will be collected. Mr Poole stated that it would be impossible for the Applicant to know this based on the notice of 20 November 2023.
Mr Poole further stated that it was critical for the Applicant to know where patient information might be recorded, whether the information would be in one or more locations (for example paper and electronic) for each individual patient. The Notice, according to Mr Poole does not provide any such clarity.
Mr Poole informed that it would be essential to know whether the Flight Nurses, in enacting the proposed action, would comply with the correct procedures when implementing Business Continuity Plans. Mr Poole stated that the current practice is that when using paper-based records, the administrative staff upload the paper records which are confirmed by the Flight Nurses. Mr Poole’s evidence was credible and considered, he is well qualified in respect of the evidence he gave and I accord appropriate weight to his opinions particularly given the nature of the Applicant’s operations.
Respondent’s Submissions
The Respondent opposes the application on the basis the Applicant incorrectly alleges that the Notice of Protected Industrial Action (Notice/PIA) provided by the Respondent to the Applicant on 20 November 2023 does not meet the requirements of the entirety of s.414 (as opposed to a specific subsection), and the Applicant has confused “notice provisions” as referred to in paragraph 3 of their application with the notice of PIA, for protected industrial action due to commence on 28 November 2023.
The Respondent’s position is that their 20 November notice is a notice of employee claim action which meets all of the requirements of s. 414 and is not defective in any respect.
The Respondent submitted that before members of the ANMF commence engaging in protected industrial action (employee claim action) as notified on 28 November they gave written notice of the action to the Applicant and that notice was provided with at least 5 working days’ notice, which is the period of notice (longer than 3 working days) specified in the protected action ballot order.
As required by section 414(1), the 20 November notice was not given until after the results of the protected action ballot had been declared, and specified both the nature of the action and the day on which it would start.
The Respondent contends that section 414(6) should be construed with an understanding that under the Act, the Respondent has the right to engage in protected industrial action and neither section 414 or any other provision of the Act requires a notice to include the start time of the industrial action on the day it is notified to commence, nor the date that the industrial action will finish, or the duration or period of the industrial action.
The Applicant included as part of their application, at Annexure B, a letter dated 22 November 2023 raising concerns about the matters that are the subject of this application. The Respondent provided a response dated 23 November 2023 which included additional detail beyond what is required by section 414, in response to issues and questions raised by the Applicant.
The Respondent submitted that their Notice of Protected Industrial Action given on 20 November specifies the nature of the action to be taken in compliance with section 414(6), and does so in exactly the same terms as the questions in the Protected Action Ballot Order, and the Protected Industrial Action voted in favour of members of the Respondent in that ballot.
The Protected Action Ballot Order specified a longer period of notice for the taking of Protected Industrial Action from three working days to five working days, following a consent position reached between the Parties. The additional two working days were to enable the Applicant to prepare and respond appropriately to the Protected Industrial Action as described in the ballot questions. That additional period of notice would enable the Applicant to respond appropriately to the Protected Industrial Action, which was notified with the same degree of specificity as the Protected Industrial Action described in the ballot questions.
The Respondent contends that this application cannot succeed unless it can satisfy the Commission of a number of things, the first being that the Applicant’s ability to prepare for and respond to the industrial action would be significantly different depending on the nature of the specific details they say they require in the notice.
In this regard, the Respondent relies on the Decision of WesTrac v The Australian Workers’ Union[8], in which it contends that WesTrac sets the bar for the level of specificity required in the notice of Protected Industrial Action, and that is much lower than the specificity provided in the Respondent’s Notice of Protected Industrial Action of 20 November. The Respondent submits that the level of specificity in the Notice of Protected Industrial Action is no less than a previous notices and is identical to that provided in their notice of 14 November.
The Respondent submits that the complaints detailed in this application appear arise from legal advice obtained following the issue of the Protected Action Ballot Order by Commissioner Hunt on 24 October 2023[9], before which the Parties reached an agreement on what the Applicant required in terms of notice period, as opposed to any genuine concerns held by the Applicant when considering its response to our 20 Nov notice of Protected Industrial Action.
The Respondent relied on a Decision of Commissioner Wilson in National Patient Transport Pty Ltd T/A National Patient Transport v United Voice; Australian Nursing and Midwifery Federation (NPT), to demonstrate that the difference between the minimum and maximum extent to which the bans they have notified in this case is greatly reduced, and of much less impact on the Applicant, than in the unlimited 10 minutes stoppages in NPT.
The Respondent argued that given the responsive nature of RFDS’ mission, which required them to respond to random emergencies with little or no notice, it is not possible or practicable to provide greater specificity in the Notice of Protected Industrial Action, including specific times, because the need for members of the Respondent to perform the (banned) tasks at any given time or respond to a call (but for the protected industrial action bans), is unpredictable.
The Respondent submitted that the Notice of Protected Industrial Action given to the Applicant on 20 November is specific enough in describing the nature of the action, is not broad, ambiguous or contradictory, and is sufficiently specific to make it reasonably practical for the Applicant to make reasonable preparations and take defensive action from 28 November 2023 to the notified protected industrial action.
In conclusion, the Respondent submitted there is currently no unprotected industrial action impending, threatened or being organised, and so this application must be dismissed.
Ms Green’s evidence
The Statement of Ms Melissa Green, a Flight Nurse employed by the Applicant, dated 24 November 2023 was prepared in response to the Affidavit of Lee Poole. Specifically, Ms Green disagreed that the recorded times for “crew ready” and “aircraft door close at base” are clinically relevant data, and that the recording of “patient handover time” and “arrival at handover destination” in progress notes is clinically relevant data which would not affect patient outcome. In that context, she stated that in the course of taking protected industrial action, ANMF members will record “patient handover time” and “arrival at handover destination” to avoid any clinical risk.
Further, Ms Green stated that clinically relevant data will be recorded in patient progress notes and will be provided by ANMF members throughout the course of engaging in protected industrial action. She stated that it has been previously explained to staff that all other data are treated as Key Performance Indicators required in the Applicant’s contract with Queensland Health, and do not have any clinical relevance. Ms Green’s evidence is that the example provided by Mr Poole in his Affidavit at paragraph 14 is misleading and that all information that will assist clinical outcomes will be recorded by ANMF members within the patient’s progress notes and also verbally conveyed.
Her statement concluded by responding to paragraphs 18 and 19 of Mr Poole’s Affidavit by clarifying what a “medical chest” and “AFR” is, and stating that records will be made manually with paper and pen during the course of the protected industrial action, including when the EMR (or HALO) system is available and operational and the task of uploading paper records is completed by administrative staff and not nurses.
Consideration
I don’t accept the Applicant’s submission that the Notice is lacking a start time as this is not a requirement under the Act. The Act requires that the notice provides “the day on which it will start:”.[10] The Notice clearly sets out the start date as Tuesday 28 November 2023 at the last line on its first page.[11] The Act requires no more.
The Applicant’s submissions supported the proposition that they considered the Notice failed to provide sufficient detail to enable them to take defensive action. As Commissioner Bissett found at first instance in Yallourn,[12] whilst the purpose of the notice is to allow the employer to take defensive action, “it was not the purpose of the notice to enable Yallourn to meet the inconvenience, risk and financial losses flowing from the industrial action.”[13] I further note Commissioner Cambridge’s consideration of the full bench decision in Yallourn, put succinctly:
“that any determination of an alleged deficiency with a notice involves a balanced consideration that examines the particular nature of the relevant workplace operations, the practical impact of the particular industrial action, and an assessment that ultimately provides a balance between the recognised right of the employer to take defensive action against proposed industrial action, and the right of those employees to take that protected industrial action in the enterprise bargaining context.”[14]
In Yallourn, the issue of whether a start time was required in that matter, was considered in circumstances where major plant and equipment could be affected and in broad terms the Full Bench rejected any requirement for a specific start time which further supports my findings that a specific start time is not required on the notice.
In respect of the requirement to “specify the nature of the action”,[15] the Full Bench considered this issue further in the decision in Telstra[16] in which there was some debate as to the reference to “indefinite stoppages.” In Telstra the Full Bench found that “whether a particular notice meets the requirements in s.414 (6) will depend on the terms of the notice and the industrial context.”[17]
Further the Bench found 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.[18] In order to prepare for all eventualities contemplated by the notice in this case, the appellant 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.”[19]
In the present case I am satisfied that on the evidence before me, in the industrial context of the Royal Flying Doctor Service being a national, charitable, health organisation delivering primary healthcare and 24-hour emergency services for those that live in rural and remote Australia.[20]
In respect of action 1, it is uncontested that two of the actions at (a) fall in the category of being clinical data. Those are the two examples in the Notice titled ‘arrival at handover destination’ and ‘patient handover date/time’.[21] This is agreed in the evidence of both Ms Green and Mr Poole. It is Mr Poole’s evidence that the other two actions named in 1(a) constitute clinical data. I accept this evidence. I also accept that the ban or partial ban is not limited to the four actions listed at 1(a). This is plainly read by the use of the word “including” at the end of the first line at action 1.
In respect of action 1(b), I heard evidence from both Mr Poole and Ms Green as to what is included in a “Medical Chest”. I accept that the medication held in that chest is medication that would require authorisation by an appropriately qualified doctor or nurse practitioner and is clinical by its very nature.
Further, in respect of action 1(c), I accept the evidence of Mr Poole[22] that the actions alerted to be taken in respect of Aviation Flight Record (AFR) data are also unclear. Ms Green’s evidence that the pilot normally completes this record but sometimes the nurse assists[23] only further demonstrates confusion.
It is self-evident that a common understanding is lacking between the parties as to what these actions mean. When compared to the matters at Telstra or Yallourn, the industrial context here involves patient outcomes rather than impact on machinery. In the industrial context of the very important work performed by the Applicant, this is a significant problem. I accept the evidence of Mr Poole given at hearing that more clarity is required around each of the actions at 1 (a, b and c), to enable the Applicant to make reasonable preparations to deal with the effect of those actions as set out by the Full Bench in Telstra.[24]
I do not accept the proposition put by the Respondent at hearing that the lack of clarity can be corrected by further communications between the parties, either verbally or in writing during the notice period. To accept such a proposition would in effect negate the requirement for a notice period which is set by statute.[25]
I am satisfied that there is sufficient evidence before me to conclude that the Notice at actions 1 (a) and (b) and (c) lack sufficient clarity so as to enable the Applicant to be in a position to instigate appropriate mitigations to deal with the effects of the industrial action.
In respect of action 2, Mr Poole gives evidence[26] that there are procedures in place for recording this information by alternative means. His evidence was that the Applicant needed to know when it would need to enact the alternative means. I have already found that the Notice contains a start date and I am satisfied on the basis of the evidence before me, including the fact the Applicant already had an alternate process in place that it can use, and the authorities to which I have previously referred, that the Applicant is in a position to make the preparations required to deal with this action. I accept it might cause inconvenience but that is a consequence of protected industrial action and not a justification for making the orders sought.
In respect of actions 3 and 4, I am satisfied on the basis of the evidence before me from Mr Poole and Ms Green given at hearing and in their statements, in addition to the submissions from both the Applicant and the Respondent, that the Applicant has sufficient information before it to enable them to make reasonable preparations to deal with the effect of those actions as set out by the Full Bench in Telstra.[27]
The Act[28] empowers the commission to make orders to stop industrial action in certain circumstances where that action is not, or would not be protected industrial action. In circumstances where the Notice does not comply with s.414(6) in so far as it fails to sufficiently specify the nature of the action to be taken, I find that the Notice is therefore invalid only insofar as to actions 1 (a), (b) an (c) of that notice and therefore that those actions would not constitute protected action as defined by the Act.
Findings
Having considered all of the material before me including the evidence of Ms Laird, Mr Poole, and Ms Green I find that the notice of intention to take protected industrial action by the Union dated 20 November 2023 is defective in respect of actions 1 (a), (b) and (c).
Having satisfied myself that the Applicant had made out to the requisite degree of satisfaction that the industrial action as set out at actions 1 (a), (b) and (c) would not be protected industrial action, I find that, given Notice was given by the Respondent to take such action, on 20 November 2023 and further that there is no evidence before me that the Union resiles from this intent, I also find that Industrial Action is threatened, impending or probable and/or being organised.
Conclusion
The Act therefore requires me to make an order to stop the intended industrial action deriving from the Union Notice of 20 November 2023, in respect of actions 1 (a), (b) and (c). That order will be issued separately.
DEPUTY PRESIDENT
[1] Digital Court Book pp.10.
[2] Warrell v Fair Work Australia [2013] FCA 291.
[3] Ibid.
[4] Fair Work Act 2009 (Cth) s.596(2)(a).
[5] Ibid s.596(2)(b).
[6] Ibid s.596(2)(c).
[7] Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2009] FWAFB 1698
[8] WesTrac v The Australian Workers’ Union[2019] FWC 2939.
[9] PR767571
[10] Fair Work Act 2009 (Cth) s.414(6).
[11] Digital Court Book, p.10.
[12] Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union[2013] FWC 1202 (Yallourn). For which there was an appeal that was dismissed.
[13] Ibid [73]-[75].
[14] WesTrac v The Australian Workers’ Union[2019] FWC 2939 [16].
[15] Fair Work Act 2009 (Cth) s.414(6).
[16] Telstra Corp Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2009) 190 IR 342 (Telstra).
[17] Ibid [14] and [18].
[18] Ibid [12].
[19] Ibid [16].
[20] About RFDS | Royal Flying Doctor Service
[21] Digital Court Book, p.10.
[22] Affidavit of Mr Poole dated 22 November 2023, Digital Court Book, pp.17-21, Exhibit A1 [18]-[19].
[23] Affidavit of Ms Green dated 24 November 2023, Digital Court Book, pp 68-69, Exhibit R1 [5].
[24] Telstra Corp Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2009) 190 IR 342 [12] (Telstra).
[25] Fair Work Act 2009 (Cth) s.414(2).
[26] Affidavit of Mr Poole dated 22 November 2023, Digital Court Book, pp.17-21, Exhibit A1 [21].
[27] Telstra Corp Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2009) 190 IR 342 [12] (Telstra).
[28] Fair Work Act 2009 (Cth) s.418.
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