Royal Flying Doctor Service (Queensland Section) Limited v Australian Nursing and Midwifery Federation
[2023] FWC 3025
•18 NOVEMBER 2023
| [2023] FWC 3025 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.418—Industrial action
Royal Flying Doctor Service (Queensland Section) Limited
v
Australian Nursing and Midwifery Federation
(C2023/7052)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 18 NOVEMBER 2023 |
Application for an order to stop unprotected industrial action – Incorrect entity on Ballot Report – Whether notice to take industrial action is validly given – Notice found to be invalid - Orders granted
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) at 9.17am on 17 November 2023 by Royal Flying Doctor Service (Queensland Section) Limited (the Employer). The application was accompanied by the notices sent by the Australian Nursing and Midwifery Federation (ANMF/the Union) regarding industrial action and the Employer’s response to these.
This application involved a Protected Action Ballot Order (the Order/PABO) issued by the Commission on 24 October 2023[1]. The Order specified that the vote would be conducted by True Vote Pty Ltd and listed the parties on the Order as Australian Nursing and Midwifery Federation and Royal Flying Doctor Service of Australia (Queensland Section) Limited. On 7 November 2023, TrueVote Pty Ltd provided the report conducted by them which named on the covering page the Queensland Nurses and Midwives Union (QNMU).[2]
The present application has been made by the Employer as a result of a notice of protected industrial action issued by the Union on 14 November 2023 (Notice).[3] The Employer, upon receipt of the Notice wrote back to the Union on 15 November 2023, alleging that the Notice was invalid for the following reasons:
“Your notice states, in the second paragraph:
This action is authorised by a ballot of ANMF members conducted in accordance with an order made by Commissioner Hunt on 24 October 2023 in B2023/1153, the results of which ballot were declared on 7 November 2023.
The notice provided on Tuesday 14 November is fatally defective, and invalid, in that the ANMF have provided no evidence of a valid ballot of ANMF members pursuant to the Protected Action Ballot Order (“PABO”) made by Commissioner Hunt on 24 October, 2023 in B2023/1153 required for the taking of protected industrial action.
The relevant application for a PABO, under s 437 of the Fair Work Act 2009 (“FWA”), was made by the Australian Nursing and Midwifery Federation. The resultant order of
Commissioner Hunt of 24 October 2023, says in paragraphs 1 and 3 respectively:
1. PROTECTED ACTION BALLOT TO BE HELD
Australian Nursing and Midwifery Federation (ANMF) is to hold a
protected action ballot of employees of Royal Flying Doctor
Service of Australia (Queensland Section) Limited described in
clause 3 of this order.
3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED
In accordance with s.437(5) of the Act, the employees to be
balloted are those who will be covered by the proposed
enterprises agreement and are members of, and are represented
by the bargaining representative who is the applicant for this
protected action ballot order.
The Ballot Report from the Ballot Agent, TrueVote, dated 7 November, 2023, states in the first paragraph:
The following ballot report is for B2023/1153 Protected Action
Ballot conducted by Truevote on behalf of Queensland Nurses
and Midwives Union. The ballot was live from 31/10/2023
12:00PM AEST to 7/11/2023 4:00PM AEST
S 449(1) of the FWA provides that a protected action ballot must be conducted by the person or entity specified in the PABO as the protected action ballot agent for the ballot.
S 449(2) of the FWA prescribes that the protected action ballot agent must conduct the protected action ballot expeditiously and in accordance with, among other things:
(a)The protected action ballot order;
The form and content of TrueVote’s Ballot Report of 7 November, 2023, show that the agent conducted a ballot of members of the Queensland Nurses and Midwives’ Union – not the Australian Nursing and Midwifery Federation. The cover page of the Ballot Report says as much; so, too, the first paragraph of the Ballot Report.
Therefore, there has been non-compliance with paragraph 1 of the PABO. That, in turn, entails non-compliance with the mandatory requirements of s 449(2) of the FWA.
As a consequence, the resultant ballot outcome – and the TrueVote Ballot Report of 7 November, 2023, are legally incapable of permitting notices of protected industrial action in support of the employee position in bargaining for a new EA. The declaration of the results of the protected action ballot, as contained in the TrueVote Report, is incapable of providing a basis for protected industrial action.
The right to take protected industrial action is significant. It alters the balance of legal rights between an employer and employees. Correct identification of the party commissioning the ballot pursuant to a PABO, and the organisation whose members have been balloted, are fundamental steps.
The defects identified are not technical and, therefore not validated by s 461 of the FWA. There have been no results declared for any ballot of ANMF members.
You are requested to withdraw the purported notice forthwith. Should it not be withdrawn by midday, AEST, on Thursday 16 November 2023, an application will be filed, by RFDS, with the Fair Work Commission seeking orders against the ANMF, and others, under s 418 of the Fair Work Act 2009.”[4]
(emphasis added)
On 15 November 2023, at 8:42pm, the Director of TrueVote Pty Ltd, Stephen Donaldson, wrote to the Commission, copying the Union and the Employer, to advise that they sought to rectify an error in the Ballot Report relevant to this matter of 7 November 2023.[5] Mr Donaldson pointed out that the relevant error was the titling of the report as a ballot concerning the QNMU when it ought to have stated that it was a report concerning the Australian Nursing and Midwifery Federation.[6] Mr Donaldson advised in that correspondence that the Ballot was conducted of the relevant members of the Australian Nursing and Midwifery Federation and apologised for the “misnaming” of the Ballot Report.[7] Mr Donaldson also stated that further that action had been taken in respect of TrueVote’s internal processes to ensure there was no further “occurrence of a similar heading error”.[8] Attached to this email was a replacement Ballot report signed by the balloting agent Mr Donaldson on 15 November 2023.[9]
Hearing
On 17 November 2023, I issued directions for the filing of material by the parties and listed the application for hearing at 2.30pm that same day. Evidence was provided by the Employer at 1:20pm and at 1:39pm 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.[10] 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.[11]
The Applicant submitted that due to the unusual nature of the application, in that it considered an error on the part of the ballot agent, that the Commission would be assisted by their legal representatives. They further submitted that the application was a matter of importance to the Applicant who provides a critically essential service to Queenslanders in remote and regional areas. The Respondent submitted that unusualness and importance are not reasons provided for in the Act in respect of granting leave for legal representation and therefore were not relevant considerations. The Respondent further submitted that given the relevant circumstance of the application, the matter is specifically the sort of matter in which the Commission would be hindered and delayed by the representations of lawyers who might unnecessarily complicate the matters agitated.
I enquired regarding the Applicant’s internal expertise in this area and whilst they were unable to advise me as to whether the Applicant had such expertise it was pointed to me that Mazars (a paid agent) had been representing the Employer in the bargaining of the Agreement in question and I noted that Ms Cheryl-Anne Laird a Partner of Mazars, was an appointed Bargaining Representative of the Employer.[12] The Employer had made the decision to appoint a paid agent as a Bargaining Representative, it must follow that at the very least, the Employer had decided it would be better equipped to deal with the making of its proposed Enterprise Agreement with the assistance of external expertise.
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[13] and on the basis that such leave may be withdrawn if this was no longer found to be the case. Further, I note that given what I have set out at paragraph [12] of this decision, that it would be unfair for the Employer given it was questionable that they had the expertise to represent themselves[14] 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.[15]
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 PABO had not been complied with by the ANMF nor the Ballot Agent. They submitted that there was no evidence that ANMF members had cast a valid vote and that there was no evidence that the Ballot Agent had acted in compliance with the order at the time of the Notice.
The relevant PABO listed that the group to be balloted were “the employees…who will be covered by the proposed enterprises agreement and are members of, and are represented by the bargaining representative who is the applicant for this protected action ballot order.” The Applicant submitted that s449(1) of the Act provides that a protected action ballot must be conducted by the person or entity specified in the PABO as the ballot agent and that s449(2) of the act prescribes that the ballot agent must conduct the ballot expeditiously and in accordance with, among other things, the order itself.
By conducting the ballot on the members of the QNMU rather than on members of the ANMF, the Applicant submitted that the ballot agent did not act in compliance with the order. Further, by providing notice of the action on 14 November 2023, the Applicant submitted that there can be no lawful basis for Union to take protected industrial action pursuant to that Notice, on the back of a Ballot report corrected and dated 15 November 2023. The Applicant submitted that there can be no lawful basis for a retrospective application of the corrected report of 15 November (provided to the parties at 8.42pm of that date) to the Notice of intention to take protected industrial action dated 14 November 2023.
Ms Laird’s evidence
Ms Laird, partner at Mazars and the Applicant’s appointed bargaining representative made an affidavit and provided copies of the relevant correspondence and ballot reports which are summarised as follows:
“…
4.On 14 November 2023, I was copied into an email which attached a letter dated 14 November 2023, from Ms Kate Veach, Secretary of the Respondent, addressed to Ms Meredith Staib, Chief Executive Officer of the Application, which purported to notify of industrial action pursuant to section 490 of the Fair Work Act 2009 (Cth) (First Notice)
5. On 15 November 2023, I sent a letter to Ms Veach which stated that the Frist Notice was defective.
…
6. On 15 November 2023, I received an email from Mr Donaldson from True Vote Pty Ltd, which attached a Ballot Report titled B2023.1153 Protected Action Ballot, Australian Nursing and Midwifery Federation 31 October 2023 to 7 November 2023. This report is dated 15 November 2023. (15 November Ballot Report)
…
7.On 16 November 2023, I received an email from Mr Kevin Crank, Industrial Officer of the Respondent which among other things, attached the 15 November Ballot Report
…
8.On 16 November 2023, I sent a letter to Ms Veach which stated that the First Notice remained defective and further stated that the 15 November Ballot Report could not retrospectively provide a lawful basis for the First Notice.
…”
The Respondent did not otherwise contest the evidence of Ms Laird.
Respondent’s Submissions
The Respondent submitted that they had acted in accordance with the Act and the Order and that the Applicant’s claims that “there is no lawful basis for protected action” are made without reference to any section of the Act. The Respondent compared the application to the submission in the famous Australian film The Castle, submitting it was tantamount to “it’s the vibe, Your Honour’.
Noting that the ballot was conducted by an authorised ballot agent, the Respondent submitted that the report contained a clerical error naming the state counterpart to the federal registered union. The Respondent submitted that the Act did not require that any correction of a clerical error, or any error, by the ballot agent in their report occur prior to the giving of notice.
The Respondent submitted that there is compelling evidence of a valid vote of ANMF members pursuant to the Order. The evidence to which they refer is the corrected Ballot Report of the Ballot agent dated 15 November 2023. The Respondent further submitted that the application was contradictory, by stating that there is no evidence of a ballot of ANMF members, but then referring to the corrected ballot being done of ANMF members and not mentioning the QNMU.
The Respondent submitted that the error was clerical in nature, should not result in an order that the action be prevented.
Mr Crank’s evidence
The Respondent sought to have Mr Crank provide oral evidence in chief on the matter. I sought the views of the Applicant who made no general objection but reserved their right to object to any particular evidence. Given the swiftness with which the matter was brought on for hearing, I considered it reasonable that Mr Crank be given an opportunity to provide oral evidence and Mr Crank subsequently took an oath.
Mr Crank stated that the QNMU is an employee organisation registered under the Industrial Relations Act of Queensland, and that it is the counterpart union which was transitioned to become federally registered on a transitional basis. On cross examination by Mr Murdoch, Mr Crank acknowledged that this transition did not occur. Mr Crank stated that every member of the QNMU is also a member of the ANMF.
Mr Crank conceded that to the best of his knowledge, there was no registered business name or trading name of the ‘Queensland Nurses and Midwives Union’ but pressed that it is the name registered under the Qld Industrial Relations Act. Upon further cross examination, Mr Crank acknowledged that the Employer was a national system employer.
Mr Simon Ong, industrial officer for the Respondent, provided that a search of the relevant ABN demonstrated that the entity name is Australian Nursing and Midwifery Federation (QNMU Branch) and whilst Mr Ong was not under oath, I accept this evidence.
Consideration
Technical Breach
The Act provides protections for the validity of a “protected action ballot etc” where such is affected by a ‘technical breach.’[16] Whether this protection validated the errors made in the Ballot report was contested by the parties.
The Explanatory Memorandum[17] explains that “the effect of this clause is to ensure technical breaches of the specified provisions of Division 8 will not go to jurisdiction (that is, not lead to invalidity). This is to protect the integrity of the conduct of the protection action ballot and ballot results where a ballot has been conducted (or purportedly conducted) unless a person has contravened – other than in a technical way – a protected action ballot order or an order, direction or decision of FWA in relation to a ballot etc.” etc refers to paragraphs s.461(a) to (f).
The error considered in this matter is the incorrect naming of an entity’s members in a Ballot Report the subject of a PABO. I don’t consider this can be described as a technical breach but rather it is a fundamental error such that it renders the object in which it has been incorrectly used as fundamentally flawed. A technical breach might be an incorrect reference to a clause number that by a consideration of all other relevant information points to a particular clause. I am unable to accept that the use of a name that is other than the entity named in a PABO and that is neither registered as a business name nor a trading name nor is registered under the Act[18] for which it is purported to operate in this very instance (for a National System Employer), can be regarded as a technical breach.
The importance of naming the correct entity in proceedings is a serious matter. There have been countless proceedings in this jurisdiction and others that have succeeded or failed on the basis of being or not being properly constituted against the correct parties. The Corporations Act itself has an entire Part dedicated to rules about the proper use of company names.[19]
Findings
Having considered all of the material before me including the evidence of Ms Laird and Mr Crank, I find that the notice of intention to take protected industrial action by the Union dated 14 November 2023 is defective. The PABO was made in respect of the Australian Nursing and Midwifery Union. The Notice of 14 November 2023 was issued on the basis of its compliance with the PABO. The Ballot Report of 7 November 2023 did not comply with that order. Despite the assertions of the Balloting agent, I note that it was not just simply a clerical error in the heading of the Ballot report which may still in and of itself have been problematic, but I also note the appearance of the incorrect name also appears within the Ballot report itself on page 2.
The Employer receiving such notice on 14 November and realising the error, wrote to the Union the following day to put them on notice in respect of its defectiveness. I note that a notice period of 5 days was required to be given by the Union with respect to taking protected industrial action given the important nature of the work of the Employer. There is no evidence before the Commission that the Employer took any action to minimise the impact of the proposed industrial action on the basis of that defect in the Notice.
The correspondence sent to the Commission and to the parties from the Balloting Agent at 8.42pm on the evening of 15 November 2023 creates a further problem. It is dated 15 November which has the consequence, probably unintended, of establishing that the PABO was not complied with until very late on 15 November 2023. It follows that a Notice issued on 14 November cannot be compliant with the PABO given the Ballot Report that gave legal effect to the Notice at that time, was not compliant with the PABO, in that it referred to a different entity to that so ordered by the Commission on 24 October 2023. To be clear, I do not make findings that the PABO was improperly conducted. My findings relate only to the Ballot report being non-compliant with the PABO at the time the Notice was issued. Should a new notice be issued by the Union at any time after the corrected Ballot Report was issued by the Ballot agent, on the basis of the evidence before me, it is my view that such a new notice would not be infected by my findings in this decision.
Having satisfied myself that the Employer had made out to the requisite degree of satisfaction that industrial action would not be protected industrial action,[20] I find that, given Notice was given by the Union to take such action, on 14 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.[21]
Order made
The Act therefore requires me[22] to make an order to stop the intended industrial action deriving from the Union Notice of 14 November 2023. That order will be issued separately.
DEPUTY PRESIDENT
[1] PR767572 & PR767571
[2] Digital Court Book pp.30-36; Affidavit of Cheryl-Anne Laird dated 17 November 2023, Annexure CAL02,
[3] Digital Court Book pp.9-10.
[4] Digital Court Book pp.11-13.
[5] Digital Court Book p.44; Email of Mr Stephen Donaldson dated 15 November marked as Annexure CAL05 to the Affidavit of Ms Cheryl-Anne Laird dated 17 November 2023.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Digital Court Book pp.45-51; Ballot Report of TrueVote marked as Annexure CAL05 to the Affidavit of Ms Cheryl-Anne Laird dated 17 November 2023.
[10] Warrell v Fair Work Australia [2013] FCA 291.
[11] Ibid.
[12] Digital Court Book p.18; Affidavit of Ms Cheryl-Anne Laird of 17 November 2023 [1].
[13] Fair Work Act 2009 (Cth) s.596(2)(a).
[14] Ibid s.596(2)(b).
[15] Ibid s.596(2)(c).
[16] Fair Work Act 2009 (Cth) s.461.
[17] Explanatory Memorandum Fair Work Bill 2008 (Cth) s.1835-1836.
[18] Fair Work (Registered Organisations) Act 2009 (Cth).
[19] Corporations Act 2001 (Cth) Part 2B.6.
[20] Fair Work Act 2009 (Cth) Part 3-3.
[21] Ibid s.418(1)(b)-(c).
[22] Ibid s.418.
Printed by authority of the Commonwealth Government Printer
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