St John Ambulance Australia (NT) Inc v United Voice
[2011] FWA 4782
•21 JULY 2011
[2011] FWA 4782 |
|
DECISION |
Fair Work Act 2009
s.424—Industrial action
St John Ambulance Australia (NT) Inc
v
United Voice
(B2011/3111)
VICE PRESIDENT LAWLER | MELBOURNE, 21 JULY 2011 |
Application for an order to suspend or terminate protected industrial action - consideration of the terms threatening to endanger the life etc. of the population or part of it - application dismissed.
[1] This is an application by St John Ambulance Australia (NT) Inc (St John) pursuant to s.424 of the Fair Work Act 2009 (FW Act) for an order suspending or terminating protected industrial action being taken by members of United Voice, previously known as the LHMU, (Union) employed as paramedics by St John. This matter was heard on 11 July 2011. I delivered an ex tempore outline of my reasons for decision on the morning of 12 July 2011, indicating that I would publish revised and expanded written reasons. These are those revised and expanded written reasons.
[2] Section 424(1) relevantly provides:
“424 FWA must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action
(1) FWA 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 FWA 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.
...
Application must be determined within 5 days
(3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made.
Interim orders
(4) If FWA is unable to determine the application within that period, FWA 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.”
[3] The existing workplace agreement covering employees of St John reached its nominal expiry date some time ago, apparently in early 2010. In response to an application by the Union, a protected action ballot order was made by Commissioner Smith on 22 December 2010 1. The ballot closed on 9 February 2011. Each of the questions in the ballot was approved by an overwhelming majority. The first question approved by the relevant employees was:
“Question 1
Patient Transport-no transferring of patients from NT hospitals to their homes or other areas such as aged care centres. (Unlimited)?”
[4] The transfer of patients from a hospital to their home or another area such as an aged care centre is referred to as ‘repatriation’ of the patient. The protected industrial action authorised by Question 1 is a ban on what is referred to as the repatriation of patients (Repatriation Ban).
[5] Previously, all ‘patient transport’ was undertaken by paramedics. Earlier this year St John introduced a new classification of Patient Transport Officer (PTO). A number of persons have been recruited as PTOs and remain in training.
[6] Paramedics employed by St John who are members of the Union have been taking protected action in support of their claims for a new enterprise agreement. One of the species of action being taken by the paramedics is the Repatriation Ban.
[7] In State of Victoria v Health Services Union of Australia & Anor 2 (HSUA) a Full Bench of the Australian Industrial Relations Commission (AIRC) was considering an appeal against a decision under s.170PO of the Industrial Relations Act 1988 which provided a power to terminate a bargaining period if the protected industrial action was threatening “to endanger the life, the personal safety or health, or the welfare, of the population or of part of it”. The similarity of the language of s.424 of the FW Act is clear. The Full Bench observed:
“During the appeal little was put to us as to the meaning of these words in s.170PO(1)(b)(i). ANF, however, submitted that the word "welfare" should be read ejusdem generis with the preceding words ("life . . . personal safety . . . health") and thus be restricted to situations where life, personal safety or health was endangered. We disagree. In our view, there is no basis for so reading the word "welfare". The Macquarie Dictionary (2nd edition) defines welfare as "the state of faring well; well-being". We see no reason why the word "welfare" in s.170PO(1)(b)(i) should have other than its ordinary meaning. 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.”
[8] The word welfare is relevantly defined in the Macquarie Dictionary as “1. the state of faring well; wellbeing: one’s welfare, ...”. This is the ordinary meaning of the word ascribed by the Full Bench in HSUA. The word is defined in the Oxford Shorter English Dictionary as “The state or condition of doing or being well; good fortune, happiness or well-being (of a person community or thing); prosperity.”
[9] Some words have an ordinary meaning that is apt to vary in their denotation depending upon the context in which they are used. The precise denotation of the word “welfare” in s.424(1)(c) and what constitutes endangering the welfare of the population or a part of it is not pellucidly clear by reference to its ordinary meaning. In those circumstances resort may be had to the Explanatory Memorandum for Division 6 of Part 3-3 of the FW Act which states:
“1706. Division 6 sets out the grounds upon which FWA may suspend or terminate protected industrial action organised, or engaged in, in relation to a proposed enterprise agreement.
1707. Suspension or termination of protected industrial action brings to an end the right to take protected industrial action. Protected industrial action may be resumed after any period of suspension, but will be subject to any requirements for the giving of notice before any action may be taken. A termination of protected industrial action may lead to FWA making a workplace determination under Part 2-5.
1708. The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease - at least temporarily.
1709. It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” (emphasis added)
[10] Counsel for St John drew attention to the use of the word “significant” to qualify the effects of protected industrial action in several of the sections of the FW Act surrounding s.424 and the absence of that qualifier in s.424(1)(c). Accordingly, he submitted that the applicant was not required to show that the welfare of a part of the population is endangered in a “significant” way. On the other hand, counsel seemed to accept - I think correctly - that it was not sufficient to show any adverse effect on a part of the population’s welfare, however trivial.
[11] I was not persuaded that the absence of the word “significant” in s.424(1)(c) led to a conclusion that the Parliament intended that any adverse impact on the welfare of the population or a part of it, however insignificant, would be sufficient to activate the obligation to make an order under s.424. The key language in s.424 has appeared in the predecessor legislation for many years. The better view is that the legislature simply used that language unchanged in order to ensure that the existing jurisprudence on the predecessor provisions would continue to apply. Having regard to the statutory scheme in the FW Act, I was satisfied that the threat to welfare to which s.424 is directed is a threat that is material or substantial and certainly beyond mere inconvenience.
[12] I turned to consider the evidence. St John called evidence from Mr McKay, its Director of Ambulance Operations. A statement by Mr McKay was received into evidence as Exhibit 1 but not in relation to those parts of the statement that were argumentative or an assertion of conclusion. Counsel for St John was given an opportunity to lead further oral evidence in chief in light of that limitation on use of Exhibit 1. I disregard all parts of Exhibit 1 as are argumentative or an assertion of conclusion.
[13] I was materially discomforted by the evidence of Mr McKay and I was not prepared to accept key parts of it including paragraphs 23 and 30 of his statement. My discomfort arose from a number of aspects of Mr McKay’s oral evidence (for example, a suggestion that he maintained that patients receive higher quality care in an aged care facility when compared to a hospital). In the case of paragraph 23, I was not satisfied that Mr McKay is properly qualified to give an expert opinion of the sort contained in that paragraph.
[14] Mr Peter Shultz, one of delegates, works as a dispatcher. He was peculiarly well placed to be aware of the extent to which paramedics were transporting patients from hospitals notwithstanding the Repatriation Ban. I found Mr Shultz to be a transparently honest witness and I accepted his evidence without qualification and preferred it where it conflicts with the evidence of Mr McKay.
[15] I was satisfied that the Repatriation Ban was “happening”. Because it was ongoing, that action was also “threatened, impending or probable” in the future. The issue then became whether I was satisfied, on the evidence (and uncontested submission), that the Repatriation Ban “has threatened, is threatening, or would threaten to endanger ... the welfare, of the population or a part of it.” If I was so satisfied then the test in s.421(1)(c) was made out and I was obliged make an order suspending or terminating the protected industrial action being taken by members of the Union.
[16] I proceeded on the basis that patients being transported from hospitals in the Northern Territory were a “part” of the population.
[17] St John relied upon the threat to patient “welfare” as a consequence of the Repatriation Ban (rather than a threat to patient safety or health). I proceeded on the basis that the word “welfare” in s.424 is not read ejusdem generis with the words “health” and “safety”. 3
[18] There was some uncertainty in the evidence as to the extent to which patients who were to be repatriated to palliative care facilities were being affected by the ban. The evidence of Mr McKay would suggest that on several occasions patients in that class were delayed in their transport, albeit that the evidence suggests that such delays were measured in hours rather than days and, in truth, amounted to little more than mere inconvenience.
[19] It would seem from the evidence of Mr Schulz that these examples were limited and appeared to have their genesis in a misunderstanding on the part of some members as to whether the Union supported relaxing the ban in appropriate cases. Mr Schulz thought that the ban the Union was seeking to instruct members to impose was a total ban without exceptions, whereas I accept that the actual position of the Union is that members should use their discretion and to relax the ban in appropriate cases or alternatively decline to give effect to it as is the right of an employee who has a legal entitlement to participate in industrial action but not an obligation to do so. A letter from the Union dated 7 July 2011 notes:
“...we are of the opinion that the public action is not having a significant negative impact on the public and causing serious consequences to vulnerable member of the community as referenced in your correspondence.
To our members’ credit and their professional ethics, they are transporting palliative patients to be with their families at the end. Members are at no time leaving members of the community at risk.”
[20] Mr Schulz in fact gave effect to the true position of the Union and sought to arrange for the transport of palliative care patients by employees who would otherwise observe the ban.
[21] I note that there was no evidence called from any of the hospitals as to the effects the Repatriation Ban was having in the hospitals, and in particular the effects of any ‘bed cloggage’ caused by the ban and other ‘knock on’ effects of the action. Rather, Mr McKay merely asserted that the ban was causing effects which would adversely affect the welfare of patients seeking to use the hospitals. I was not persuaded by that evidence and I note that Mr McKay had not even contacted any relevant hospital administrators for a period of at least a couple of weeks before giving evidence. In this context I note that Mr McKay’s evidence of the adverse ‘knock on’ consequences for St John 4 was confined to bland generalities and contained no specific examples.
[22] I was not persuaded by the particular examples cited by Mr McKay (on a hearsay basis) that the welfare of those patients was being endangered in the relevant sense. In each case the delay was measured in hours rather than days. To the extent that the endangering is said to arise from sick persons remaining in the hospital environment for an additional period I was not persuaded that this has the material adverse effects on welfare asserted by Mr McKay. This evidence struck me as overblown and tendentious. Some adverse consequences, for example the bed sores referred to in paragraph 33 of Exhibit 1 cannot properly be ascribed to the ban. The staff caring for that patient at the hospital and the nursing home each had a responsibility in relation to action to prevent or manage bed sores.
[23] In reality Patient Transport Officers are little more than taxi drivers. They do not have anything like the training and skills of paramedics. St John’s contractual obligations, which I infer exist from the evidence of Mr McKay, have been met thus far (a period of some four months), by the patient transport function being undertaken by management staff when the paramedics refuse to transport a patient. There was no evidence about St John’s capacity - let alone attempts - to utilise casual drivers or another temporary substitute labour force. I was not persuaded that St John lacks the capacity, if it is so minded, to continue dealing with the disruption caused by the repatriation ban either through the continued use of management staff or through other drivers who may be obtained on a casual basis. The fact that St John and its management staff were finding it taxing to continue to provide service at its contracted levels while the repatriation ban was in place is the very outcome intended by the Union: the Union and its members have a right to place pressure on St John through protected industrial action to secure improved terms and conditions in a new enterprise agreement.
[24] In summary, I was not satisfied that the repatriation ban was endangering the welfare of the population or a part of it beyond the level of mere inconvenience to which the Explanatory Memorandum refers with the result that the jurisdictional prerequisite in s.424 was not made out and the application was dismissed. If I had been so satisfied I would have exercised my discretion to suspend the protected industrial action for a short period; say, a week. It seems to me that if the exceptions to the repatriation ban are not sufficiently extensive or are not applied with sufficient consistency to ensure that the ban does not threaten the welfare of the population or a part of it, the Union should be given an opportunity to revise the ban and notify members accordingly before being permanently deprived of the right to pursue an agreement through protected action, particularly given the delay and expense involved in a workplace determination.
VICE PRESIDENT
Appearances:
M Follett, Counsel, with N Dunn for St John Ambulance Australia (NT) Inc.
E Early and M. Gardiner for United Voice.
Hearing details:
2011.
Melbourne and Darwin (video hearing):
July 11, 12.
1 PR505386
2 Print L9810, 3 March 1995 per McIntyre VP, Williams DP and Hingley C
3 State of Victoria v HSUA Print L9810 at [61]
4 Exhibit 1 at paragraph 29.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR512384>
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