State of Victoria Department of Human Services v Health Services Union

[2012] FWA 8376

[2012] FWA 8376

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

State of Victoria - Department of Human Services
v
Health Services Union
(B2012/1630)

COMMISSIONER GREGORY MELBOURNE, 4 OCTOBER 2012

Termination of protected industrial action.

[1] On 24 September 2012 the State of Victoria - Department of Human Services (DHS) made application pursuant to s.424 of the Fair Work Act 2009 (the Act) for an order to suspend protected industrial action being taken by the Health Services Union - Victorian No. 2 Branch (HACSU) and its members. A suspension of two months is sought.

[2] The application was heard on 25 and 26 September 2012 and the parties presented witness and other evidence in relation to the protected industrial action and its impact. I indicated at the conclusion of the proceedings I intended to reserve my decision to consider what had been put, however, the application would be determined as soon as possible. Sub-section 424(3) of the Act requires Fair Work Australia, as far as practicable, to determine an application under s.424 within five days after it is made.

[3] A decision was subsequently issued on 28 September 2012 1 in the following terms:

“On 24 September 2012 the State of Victoria - Department of Human Services (DHS) made application pursuant to s.424(1) of the Fair Work Act 2009 (the Act) for an order to suspend protected industrial action being taken by the Health Services Union - Victorian No. 2 Branch (HACSU) and its members. A suspension of two months is sought.

HACSU is the bargaining representative for members employed by the DHS who are intended to be subject to a proposed enterprise agreement. HACSU provided DHS with a log of claims in regard to that agreement on 2 April 2012. There have been approximately 20 meetings to progress those negotiations since that time.

A Protected Action Ballot Order was made on 6 July 2012 and on 1 August the Australian Electoral Commission (AEC) declared a valid majority of voters authorised each of the types of proposed industrial action. On 7 August 2012 HACSU served a Notice of Intention to take Protected Action commencing on 13 August 2012. However, DHS lodged a s.418 application and after proceedings before Fair Work Australia on 14 August HACSU subsequently issued another Notice of Intention indicating industrial action would commence on 18 August 2012. Protected industrial action has been occurring since that time.

The s.424 application is concerned with what are described as “Ban 10” and “Ban 11” of the protected industrial action. They are expressed in the following terms:

‘Indefinite bans on completion of email alerts and updates in relation to Category 1 incidents, and updates in relation to Behaviour Support Plans (BSP’s) and the Restrictive Intervention Data System (RIDS) - (Ban 10).

Indefinite ban on changes to work locations unless employee initiated - (Ban 11).’

The application was heard on 25 and 26 September 2012. The parties presented witnesses and other evidence in relation to the protected industrial action and its impact. I indicated at the conclusion of the proceedings I intended to reserve my decision to consider what had been put, however, the application would be determined as soon as possible. Sub-section 424(3) of the Act requires Fair Work Australia, as far as practicable, to determine an application under s.424 within five days after it is made.

I now accordingly issue the following decision. Reasons for decision will be published as soon as possible.

The application is made on the basis protected industrial action is threatening to endanger the personal safety or health, or the welfare, of part of the population, namely the residents and staff and others engaged in delivering disability support services at various facilities throughout Victoria operated by the Department. If I am satisfied those circumstances exist s.424(1) provides I must make an order suspending or terminating the protected industrial action.

The application is opposed by HACSU.

I have considered all the evidence and submissions put in the proceedings. I am not satisfied the existing protected industrial action by HACSU and its members is threatening to endanger the personal safety or health, or the welfare, of that part of the population identified in the application.

The application is accordingly dismissed. As indicated, reasons for this decision will be published as soon as possible.” 2

[4] I accordingly now issue the following reasons for decision.

Introduction

[5] HACSU is the bargaining representative for members employed by DHS who are intended to be subject to a proposed enterprise agreement. HACSU provided DHS with a log of claims in regard to that agreement on 2 April 2012. There have been approximately 20 meetings to progress those negotiations since that time.

[6] A Protected Action Ballot Order 3 was made on 6 July and on 1 August the Australian Electoral Commission (AEC) declared a valid majority of voters authorised the protected industrial action in regard to each of the types of proposed action. On 7 August 2012 HACSU served a Notice of Intention to take Protected Action commencing on 13 August 2012. However, DHS subsequently lodged a s.418 application and after proceedings before Fair Work Australia on 14 August 2012, HACSU issued another Notice of Intention to take Protected Action4 indicating industrial action would commence on 18 August 2012. Protected industrial action has been occurring since that time.

[7] The s.424 application is concerned with what are described as “Ban 10” and “Ban 11” from the various forms of protected industrial action being engaged in. They are expressed in the following terms:

“(a) Indefinite ban on completion of email alerts and updates in relation to Category 1 incidents, and updates in relation to Behaviour Support Plans (BSPs) and the Restrictive Intervention Data System (RIDS) - (Ban 10).

(b) Indefinite ban on changes to work locations unless employee initiated - (Ban 11).

[8] The Application filed with Fair Work Australia contained the following additional explanation about the bans and their alleged impact.

“Ban 10 The industrial action being engaged in by the employees is threatening to endanger the health, safety or welfare of residents because updates usually made to the RIDS are not being carried out. These updates provide management and the Office of the Senior Practitioner (OSP) with important information about the use of restrictive interventions for those residents who are subject to residential interventions. If these updates are not carried out, then the OSP and his team will not be able to properly monitor restrictive intervention practices across disability services in Victoria and put in place additional supports and mechanisms to support residents. This absence of the updates therefore threatens to endanger the health and welfare of residents as appropriate measures to provide for the care of residents may not be taken.

Ban 11 The industrial action being engaged in by the employees is threatening to endanger the health, safety or welfare of residents and employees because employees are not changing work locations as directed by management. These directions are normally given and complied with in order to ensure adequately trained and familiar staff are available across different units within a residential service to provide appropriate support as required. Despite the HSU on 14 September 2012 stating in its letter that Eagle Unit at Colanda would be exempted from the ban, this has not been the case. The exemption has been interpreted and applied by employees as providing the Department with the ability to only direct employees from other units to work in Eagle Unit and not as also providing the Department with the ability to direct employees working at Eagle Unit to work in other units. As a result, there continues to be a threat to the health, safety or welfare of residents and employees at other units at Colanda. Particularly at Colanda Residential Services and Plenty Residential Services, the ability of management to move staff flexibly across units is critical to providing support to residents. If management does not have this ability, serious health and safety risks could arise by reason of inadequately trained /unfamiliar staff being placed into units and staff and resident’s routines being changed.”

[9] If the application is to be granted the Tribunal must be satisfied the protected industrial action is threatening to endanger the personal safety or health, or welfare, of part of the population, in this case the residents and the staff engaged in delivering disability support services to those residents at various facilities throughout Victoria operated by DHS. If I am satisfied those circumstances exist I must make an order suspending or terminating the protected industrial action.

The Facts

[10] The Applicant’s witnesses were:

• Frank Lambrick;



• Cathie Cerolini;



• Anne-Marie Halewood; and



• Natasha Williams.

[11] The evidence of Mr Lambrick and Ms Cerolini was primarily concerned with the impact of Ban 10. The evidence of Ms Halewood and Ms Williams concerned the impact of Ban 11 at two locations, the Plenty Residential Services (PRS) site in Bundoora and the Colanda Residential Services facility in Colac.

[12] The witnesses called by the Respondent were:

• Angela Landmann; and



• David Seabright.

[13] Witness statements were tendered in each case and evidence about a wide range of events and circumstances was provided. I have considered all of that evidence but have referred primarily in this decision to the evidence I consider relevant to the determination of the matter.

[14] Mr Frank Lambrick is the Acting Senior Practitioner, Office of Senior Practitioner (OSP) at DHS. He has been in that role for 14 months. His role is to protect the rights of people with a disability who are subject to restrictive interventions and compulsory treatment. He is also responsible for ensuring that appropriate standards in relation to restrictive interventions and compulsory treatment are complied with.

[15] His evidence indicated if it is proposed to use restraint on a person with a disability the disability service provider must develop a Behaviour Support Plan (BSP) for the person with a disability which states:

“(a) the circumstances in which the proposed form of restraint or seclusion is to be used for behaviour management;

(b) how the use of restraint or seclusion will be of benefit to the person; and

(c) the use of restraint or seclusion is the option which is the least restrictive of the person as is possible in the circumstances.” 5

[16] His primary objective as Senior Practitioner is to monitor whether the use of the restraints or seclusion is in accordance with the legislative requirements. In order to carry out this function Authorised Project Officers (APOs), who authorise the particular restraint or seclusion, must provide a report detailing every episode of restrictive intervention during the preceding month. These episodes are required to be reported monthly via the Restrictive Intervention Data System (RIDS).

[17] Mr Lambrick reviewed the proposed forms of industrial action and was particularly concerned about the adverse impact of Ban 10. He indicated at paragraphs [52[ and [53] of his witness statement:

“In my opinion, if there was no information recorded in RIDS by staff then this would significantly interfere with my ability to monitor and report on the use of restrictive interventions in the Department's Group Homes across Victoria, and could result in significant risks to the health, safety and welfare of residents, staff and community.

Without the monitoring ability of the OSP, there can be no independent scrutiny of restrictive intervention practices. The position would be similar to the lack of monitoring prior to the establishment of the OSP. This means that where there are concerning practices, they will continue to go unchecked. Unless these practices are reported by a family member or other individual, the OSP has no way of knowing about such concerning practices and therefore no way of intervening.” 6

[18] In regard to the ban on updates to RIDS he stated:

“. . . There is a possibility that a critical issue surrounding harm to others might result from this. For example, a risk assessment report highlighting critical risk factors may not be available for review by the OSP, which could result in the service provider missing information in relation to key risk management advice; . . .” 7

[19] In cross-examination Mr Lambrick said there was an ongoing requirement for data to be inputted into the RIDS system and he assumed arrangements had been made across local areas to make sure this continued to occur. He was not able to say whether the data was currently being inputted outside of the normal practice and there were other ways in which the data could be obtained, although those measures could introduce a significant element of error.

[20] He assumed APOs were putting information into the RIDS system at the present time, as required, and he had assurances from relevant staff they were attempting to keep up with those reporting requirements.

[21] Ms Cathie Cerolini is the Acting Manager, Workforce and Strategy Unit, Accommodation and Support Branch, Disability Services Division of DHS and is acting in this position for six weeks. Her substantive role is Disability Accommodation Services Manager for the inner part of the Southern Metropolitan Region. She oversees the management of 35 Group Homes and three respite facilities in that region and indicated in her witness statement:

“Group Homes provide accommodation services for persons with profound disabilities who cannot live independently in the community. The Group Homes provide a 24 hour support service to the residents. The residents of the Group Homes have an intellectual disability and/or a physical disability, or a dual disability (which means the person has an intellectual disability and a mental health problem).

There are approximately five residents per Group Home, although the number of residents depends on the complexity and type of the residents' needs. The level of staffing per Group Home also depends on the complexity of the residents' needs.

Many of the residents have complex needs, which may be medically related, age related, or a result of behavioural issues that may include harm to self and harm to others.” 8

[22] She indicated she was also concerned about the impact of Ban 10 on the provision of disability services. She stated:

“The ban on updates to the RIDS means that critical information recorded in the RIDS will not be appropriately channelled up to the OSP which enables the OSP to review the restrictive interventions practices in disability services across Victoria. The absence of such information could have very serious health and safety implications for residents who are subject to restrictive interventions and for staff supporting those residents.

If the ban continues for a long period of time, this will result in limited information being produced to management and the OSP about any changes or increases in the use of restrictive interventions for residents subject to restrictive interventions. Additionally, BSPs will not be updated with details of approved restrictive interventions, any changes to restrictive interventions or important information about the client. The impact of this ban will become more apparent over time as restrictive interventions are not updated on a regular basis and the OSP is unable to review the use of restrictive interventions on residents.” 9

[23] In cross-examination Ms Cerolini indicated BSP’s were kept in each of the Group Houses in hard copy form. In the seven group homes she was directly responsible for the APOs had gone to those locations where bans were in place and entered the necessary data themselves. All the reporting within the relevant period had accordingly been completed as per requirement. However, the bans might mean information was incomplete because those providing it were not as familiar with what was happening within the house. She was not suggesting this was happening, but there was a likelihood it could happen.

[24] Ms Anne-Marie Halewood, is the Disability Accommodation Services Manager, North and West Metropolitan Region of DHS and has been in that role for two years. She is responsible for 51 disability accommodation houses in the outer north of Melbourne. 24 are located on the Plenty Residential Services (PRS) site at Bundoora. PRS is an accommodation service that supports people with a disability. The 24 houses are spread across three courts, in clusters of seven, eight and nine houses.

[25] Staff at PRS often need to deal with complex situations and are required to defuse escalating incidents. Depending on their level of skill and experience they rely in varying degrees on the support of other staff members. Ms. Halewood was concerned about the impact of the ban on moving between work locations (Ban 11) as the staffing model is reliant on this happening. She provided one example on 4 September 2012 when staff did not provide coverage for an OHS meeting regarding support strategies for a new resident, who exhibited complex behaviours of concern. The Deputy Unit Manager attended the meeting instead in order to convey details of the strategies discussed to staff. The resident was subsequently involved in an altercation with another resident the following day.

[26] Her evidence indicated:

“. . . the concern is not that something has happened, but my concern is the likelihood that an event will happen, and I guess that's why I've outlined some of the potential things that could occur in the statement, because it's a risk that we're trying to manage, and the lack of flexibility and the lack of capacity to actually request staff to actually continue to support other houses as they have been doing for many years is a real challenge, and I'm concerned that ..... there could be quite a serious incident in relation to a medical issue or a staff assault or a client assault.” 10

[27] In cross-examination Ms Halewood said she was not aware of whether staff had been asked to cover for those asked to attend the meeting on 4 September 2012. She also said it was the only example she was aware of concerning the health and safety consequences of the ban.

[28] Ms Natasha Williams is the Manager, Colanda Residential Services, Barwon-South Western Region of DHS. She has been in that role for 15 months, but employed by DHS for 20 years. Her evidence also dealt with the impact of “Ban 11” concerning the ban on changes to work locations unless employee initiated. Colanda is situated on approximately 100 acres of land in an industrial area of Colac. The facility consists of six separate units where the residents are accommodated and the Opus building where a day program is provided to some residents. Colanda also has an onsite kitchen facility in which all meals are prepared for the residents, and a maintenance building in which painters, electricians, engineers and gardeners are located. Management and administrative staff are located in a separate administration building. The six accommodation units are designed and furnished differently depending on the number and needs of the residents. For example, Eagle Unit has sparse, large rooms to avoid incidents with residents and each resident has their own large bedroom.

[29] At 1 July 2012 Colanda had 99 residents in the six units. The residents typically have profound disabilities, including physical, intellectual and dual disabilities (being physical disability and mental health issues). The residents accommodated in Eagle Unit and Hostel Unit, in particular, all have severe behavioural disorders and staff supporting those residents are often subjected to assaults and threatening behaviour.

[30] Ms Williams indicated there are typically 60 staff rostered on across the six units day and the night, including domestic staff. However, Colanda often operates on less than its full rostered complement of staff, particularly on morning shifts. This occurs for a number of reasons, but is primarily a result of staff absenteeism. Management endeavours to ensure the units accommodating the highest need residents are adequately staffed at all times. Often staff from other units within the Colanda precinct are re-deployed for a few hours to help out where needed. Ms. Williams’ evidence indicated this is an important flexibility to maintain effective support for residents. In Eagle Unit there are typically two male staff rostered on day shift to assist with management of the aggressive behaviours of some of the residents. It accommodates only seven residents who have severe behavioural issues. There is a higher risk of occupational violence and risk of injury in that unit and, for example “. . . at least three DINMA (accident/injury) forms are completed a week.” 11 Staff often need to be replaced in Eagle Unit and this can occur on a weekly basis because of sick leave, or a staff member requiring a day off from the unit because of stress or fatigue, or because they have been injured or assaulted during a shift.

[31] Ms Williams expressed her concern about the potential impact of Ban 11 at a meeting with employee union representatives on 8 August 2012 and asked Colanda be recognised as one work location so that management had the flexibility to move staff between units, as required. She was subsequently advised Eagle Unit was exempt from the ban, but staff could not otherwise be directed to work in units other than those they were normally rostered in.

[32] Ms Williams also gave evidence about the potential impact of understaffing, lack of familiarity with residents, and changes to routine. She provided examples of some of the issues that can arise on a regular basis in regard to the care of patients. She also gave evidence about the additional overtime costs incurred since the bans were imposed. She indicated in her witness statement: “I consider that the ban on relocating staff potentially leaves Colanda unable provide (sic) even a basic service to residents,” 12 and more staff could get injured in higher behaviour units.

[33] In cross-examination Ms Williams stated no-one had been injured as a result of the imposition of the bans since 18 August but “. . the risk is still there.” 13 She said despite the bans being in place some staff were still prepared to continue to move between units when required. HASCU had also provided an exemption from the bans for Eagle Unit from 14 September. She also indicated issues with residents arise on a daily basis, but Ban 11 meant that risk could not be minimised as well. She concluded by indicating the situation over time was “. . . Disastrous, I mean already the impact, the potential as well as the impact of the Colanda is terrible for the residents.”14

[34] The Applicant also tendered copies of correspondence exchanged between DHS and HACSU about the bans. On 11 September 2012 Mr Mike Debinski, Acting Executive Director, Disability Services Division, wrote to Mr Lloyd Williams, State Secretary of HACSU, referring to Ban 10 and 11 and one other ban, indicating in part:

“The Protected Action being engaged in by your members is threatening to endanger the personal safety or health or the welfare of residents at various facilities throughout Victoria operated by DHS.” 15

[35] He asked HACSU to direct employees to cease to engage in that action. He also indicated the matter would be referred to Fair Work Australia if that direction was not given by the next day.

[36] Mr Williams replied the following day indicating HACSU did not believe the bans were threatening in the manner indicated and it had not been notified previously of any concerns the bans were threatening to endanger the personal safety or health, or welfare, of residents. He also noted the wording of the bans had previously been agreed in negotiations at Fair Work Australia and the form of the action was clear. The letter also asked for any further detail about the impact of the bans to be provided. Mr Jesse Maddison from DHS responded to Mr Williams on the following day, 13 September, setting out more detail about how the bans were impacting and again indicating the matter may be referred to Fair Work Australia without further notice.

[37] Mr Williams again replied the following day indicating HACSU would:

“. . . not agree to modify or cease particular forms of industrial action merely because they are inconvenient to the DHS.” 16

[38] He also indicated members had been consistently asked to document any examples of possible concerns about the impact on residents. He also indicated concerns about the impact at Colanda were “unfounded,” but HACSU would nevertheless agree to exempt Eagle Unit from the ban.

[39] Mr Maddison replied on the same day, 14 September, again seeking to have Ban 10 removed and the whole of Colanda and PRS exempted from Ban 11. The letter concluded “We look forward to your prompt response. The Department’s position otherwise remains as per my previous correspondence.” 17 There is no evidence of any further communication between the parties. The s.424 application was subsequently filed with Fair Work Australia ten days later.

[40] Ms Angela Landmann gave evidence on behalf of the Respondent. She has been employed as an industrial organiser with HACSU since November 2010 and her responsibilities extend to both Colanda and PRS. She previously worked with the DHS for 20 years. Her evidence in regard to the Ban 10 and its impact on RIDS indicated it could be ameliorated, for example, by having an APO obtain the information or a casual employee or non - union member enter the data. The ban was simply on data entry and did not extend to provision of the relevant information.

[41] She also indicated BSP’s are completed by a combination of staff, relevant family members, the resident, treating practitioners, the behaviour intervention support team and management. When a BSP is developed all staff in the area are advised of the outcome. There will also be a staff training session. Any new staff or casuals go through an orientation process. She stated the ban only relates to the update going into the electronic system and not to the development of or changes to BSPs.

[42] Ms Landmann had been told by HACSU members at Colanda that DHS had not raised any health and safety concerns with staff since the bans had been in place. She was also not aware of any health and safety concerns raised by staff at PRS. In cross-examination she said she did not believe there was a risk to the care provided to patients from the industrial bans, but acknowledged those best placed to make those judgement were the staff on site at each location.

[43] Mr David Seabright, the Deputy Unit Manger in Wren Unit at Colanda also gave evidence on behalf of the Respondent. He has been employed at Colanda since 1984 in a variety of roles. He is also Secretary of the local sub-branch of HACSU.

[44] His initial understanding was that Colanda would be treated as one location for the purpose of that ban. However, he learnt shortly afterwards this not what was intended and instead each unit was to be treated as a different work location. He was not surprised by this because generally employees at Colanda are allocated to one unit or another for long periods of time. From time to time for various reasons employees are directed to work in other units. This would usually be to cover various forms of leave. Generally people who are asked to work in a different unit have some prior knowledge or experience of that unit. There are other circumstances when employees work in other units, but for the main part employees work in one particular unit.

[45] Mr Seabright has been involved in the industrial action since 18 August 2012. It meant employees who are rostered to work in one unit will not agree to move to work in another unit unless the employee initiates the movement. Mr Seabright said the bans were intended to impact financially by requiring extra overtime to be worked to maintain the same level of service. The ban did not extend to the working of additional overtime shifts. In his view this had actually led to greater consistency because people who have been called in on overtime have actually worked previously at that work site or unit and accordingly have expertise with that location and its residents and routine. The effect has been more stability in each unit because they have been able to maintain their experienced core staff. As far as he was aware since 18 August 2012 when employees have been on leave they have been replaced in all cases by employees with experience in that unit. However, Mr Seabright was not aware how much overtime cost had been incurred as a result of these arrangements.

[46] He also indicated his role as a Deputy Unit Manager involved calling staff in or replacing staff when the need arises. Since the ban on staff movements was imposed there has been no difference in the ability to fill shifts. The only difference is it has been necessary to fill shifts with staff on overtime. He was not aware of any instance where there has been a staff shortage in any unit that was out of the ordinary. This happened from time to time because people “retire from duty” (go off duty during a shift). In a facility like Colanda being unable to fill a position on a shift is not out of the ordinary.

[47] He did not agree with Ms Williams that the ban on movements between units has created a risk to the safety and welfare of employees. In his view there was no difference in the risk to health and safety of anyone at Colanda as a result of that ban or in fact any of the other bans that are in place. He said:

“. . . that in my role as a Deputy Unit Manager and as the Secretary of the Sub-branch the health and safety and welfare of employees and clients to be paramount. If I considered there was a possibility of a risk to health and safety of anyone as a result of the bans I would immediately take steps to deal with that issue or situation.” 18

[48] He did not believe there had been any increased risk to the health and safety of employees or residents at Colanda since the bans were imposed on 18 August. He also indicated if he had been approached by anyone indicating the ban had created a risk that situation would have been dealt with. In cross-examination Mr Seabright said he was aware of the staffing levels in each unit on each day. This information was required “. . . in case we need to call back up.” 19

The Legislation and Law to be Applied

Section 424 of the Fair Work Act provides:

“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.

(2) FWA 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;

(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, 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.”

[49] The Applicant made reference in its submissions to the decision of a Full Bench of Fair Work Australia in Victorian Hospitals’ Industrial Association v. Australian Nursing Federation 20 (ANF) which recognised bans delaying the provision of public health services could impact adversely on the welfare of at least some of the patients requiring those services. The s.424 application in that matter was filed two days after the bans commenced. The Applicant referred, in particular, to paragraph [51] when the Full Bench stated:

“We were taken in the proceedings to previous decision 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. There 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.”

[50] Importantly in the context of the present matter the Full Bench continued to indicate at paragraphs [52] and [53]:

“Although the industrial action by the ANF and its members has only been taken over a few days, there is substantial evidence about the serious impact that it has had on public health services and on the safety, health and welfare of some patients. There is also evidence as to the likely effect that the industrial action will have on patient safety, health and welfare if it is to continue into the future. In particular, we heard evidence from four senior administrators of major health services in Victoria which cover a very significant part of the Victorian population. They gave evidence regarding the consequences that the bed closures have had and will continue to have on hospital services and on patients. It was said that as a result of the industrial action patient care is being compromised with patient safety, health or welfare being placed at risk. They referred to the potential for Emergency Departments to become blocked and overcrowded, for more patients having to remain in emergency for longer periods awaiting transfer to wards, and for more hospitals to be placed on ambulance bypass. The evidence was to the effect that these problems will become more acute as the industrial action continues to be implemented within the system and with the possibility of one in three hospital beds being closed. It was said that the public health system is already under enormous pressure with hospitals operating at near capacity. The effect of the industrial action will be to add additional pressures. It was also explained that the cancellation of scheduled elective surgery, with patients not necessarily being given another date for surgery, will also have a significant detrimental impact on patients. The surgery might be cancelled at a day’s notice after patients have been waiting for months for the surgery and have undertaken much preparatory work.

Evidence was also given of specific cases of individual patients who have suffered adverse consequences because of the impact of the industrial action. These included cases where patients have had to wait in excess of 24 hours in Emergency Departments, where treatment in Emergency Departments has been delayed due to overcrowding and where “category 1” and “category 2” surgical procedures have been cancelled for patients with pain, physical incapacity and/or undiagnosed conditions.”

[51] The Applicant also referred to paragraph [55] of that decision in support of the view the Full Bench was satisfied an increased risk of delays and problems in the delivery of public health services was sufficient to trigger s.424. The Full Bench stated at paragraph [55]:

“We also recognise that there are delays and problems which occur in the public health system on a regular basis which result in, for example, prolonged stays for patients in Emergency Departments and the cancellation of elective surgery. It is part of the normal function of hospital management to deal with such problems and challenges so as to seek to minimise their impact. However, the protected industrial action being taken by the ANF and its members is likely to result in an increase in such delays and problems and to exacerbate the difficulties for hospital management in dealing with them. The evidence before us is that in such circumstances the increased likelihood of such occurrences will have the effect of putting the welfare and safety of patients at risk and jeopardising their health. The protected industrial action will add extra pressure to a system already under pressure.

[52] It continued to indicate at paragraphs [56] and [57]:

“Overall, we consider that the impact of the protected industrial action has been to adversely affect the quality and timeliness of the treatment that can be provided to patients, especially those in Emergency Departments and those requiring surgical procedures. In our view, the impact is of such a nature as to cause more than just inconvenience to these people but to endanger their safety or health or their welfare. Furthermore we consider that this adverse impact on the users of the Victorian public health system will be aggravated as the industrial action by the ANF and its members continues to be implemented with the aim of reducing the capacity of the system through bed closures, cancellations of operating sessions and other bans.

In reaching these conclusions, we note that considerable efforts are being made by hospitals to minimise the adverse effects of the industrial action on their operations and, in particular, on patient treatment and care. However given the size and wide coverage of the public health system in Victoria, and the likely cumulative effect of the industrial action in reducing over time the capacity of the system, there is a limit to what can be achieved through such measures. There is also only limited capacity to use the resources of private hospitals. We have taken into account the expressed intention of the ANF that the industrial action will be implemented in such a way as not to endanger anyone’s life, personal safety or health, or their welfare, However the evidence before us as to the actual and likely consequences of the industrial action across the public health system and for those using the system, has demonstrated that the action being taking is endangering the safety, health or welfare of patients. Further, we are not persuaded that the ANF’s exemption and notification processes are working in practice.”

[53] Importantly, the Full Bench also affirmed there must be an appropriate evidential basis to support an order being made pursuant to s.424(1). It stated at paragraph [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 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”. 21 [Footnotes deleted]

[54] The Applicant also made reference to the decision of Senior Deputy President Kaufman in Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union 22[Ambulance Victoria] and the observation in that decision:

“I must be satisfied that the protected action would threaten to endanger, not would endanger. The new Shorter Oxford English Dictionary defines threaten as:

Constitute a threat to, be likely to injure, be a source of harm or danger.” 23

[55] Senior Deputy President Kaufman also continued in that matter to consider how the expression “would threaten to endanger” should be viewed. He concluded, “I intend to approach this matter on the basis of probabilities rather than possibilities.” 24 He concluded:

“On the evidence, I was satisfied that it was probable that protected industrial action would have increased the response times of ambulances, not only in the areas affected by the strikes, but also more generally where assets might be deployed to cover the banned branches. This is despite the best endeavours that Ambulance Victoria might take to minimise the impact of the protected industrial action. Delayed responses by ambulances would have threatened to endanger the welfare of those awaiting them. In severe cases the delay would have threatened the life of a person needing urgent medical attention where minutes can mean the difference between life and death. My having attained that degree of satisfaction, section 424 requires that I make an order to suspend or terminate the protected industrial action.” 25

[56] The Respondent also referred to the Full Bench decision in National Tertiary Education Industry Union v. University of South Australia. 26 [NTEU] In considering in what circumstances it was appropriate to make an order under s.424 the Full Bench stated in that matter:

“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 is clear from the Explanatory Memorandum to the Fair Work Bill 2008:

‘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.

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.’ [paras. 1708-1709]” 27

[57] In St John Ambulance Australia (NT) Inc v. United Voice 28, Vice President Lawler also considered what was required to found an order pursuant to s.424. The Vice President stated:

“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 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 legislation 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 the welfare to which s.424 is directed is a threat that is material or substantial and certainly beyond mere inconvenience.” 29

The Decision

[58] There can be no doubt about the demands of the work performed and carried out by the employees of the DHS referred to in these proceedings. The evidence indicates the care of residents in facilities such as PRS and Colanda is difficult and demanding. Evidence has been provided about the stress and fatigue that staff suffer from. Injuries and assaults are also commonplace events, with both staff and residents impacted.

[59] Bans initiated as part of a campaign of protected industrial action taken in accordance with the scheme of the Act clearly add another consideration to this already difficult working environment. However, given the provisions contained in s.424, and the decisions referred to, it is clear the impact of any protected action must extend beyond inconvenience. It requires evidence of a threat that is material or significant so the impact is such it is the public interest or, as the Explanatory Memorandum indicates, in some cases in the interests of those engaging in the action, that it cease. The circumstances in the present matter can also be compared with those considered by the Full Bench in the ANF matter when it indicated at paragraph [55]:

“We also recognise that there are delays and problems which occur in the public health system on a regular basis which result in, for example, prolonged stays for patients in Emergency Departments and the cancellation of elective surgery. It is part of the normal function of hospital management to deal with such problems and challenges so as to seek to manage their impact.” 30

[60] In the current matter, as already indicated, the working environment is difficult and demanding. Residents require high levels of care and are regularly injured or involved in accidents. Staff are assaulted from time to time. Vacancies occur in rostered shifts on a regular basis because of stress, fatigue or injury and have to be covered. However, as in the management of public hospitals, as stated by the Full Bench in the ANF matter, it is part of the normal function of the management at DHS to deal with these problems and challenges and to seek to minimise their impact. Accordingly, for an order to be made in this matter the protected industrial action being taken by HACSU and its members must be impacting in a way that significantly adds to and/or exacerbates the threat to personal safety and health, and the welfare, of the staff and residents over and above what might exist in the normal working environment.

[61] The application is made because of the impact of two bans. They have been in place since 18 August and are said to have a compounding effect as time passes. So called “Ban 10” is submitted by the Applicant to be of lesser importance, but still sufficient to “meet the statutory test” and warrant an order under s.424. During the course of the proceedings it was indicated it relates only to data entry, and does not act to prevent the development and updating of BSPs and RIDS.

[62] The Applicant submits Ban 10 is a significant change from the normal processes for the RIDS data collection. It cuts out home based staff from the process. APO’s, for example, also have a number of important tasks to attend to. When they are also required to manually collate information and enter it, not only is there a risk of information not being accurate, but a risk of other tasks not being completed. This adds to the risk data entered in the RIDS is incomplete, erroneous or lacking context. The OSP was created in the first place in an endeavour to deal with these risks. Risk assessment reports highlighting critical risk factors may not be available for review by the OSP, which could result in the service provider missing information in relation to key risk management advice. It is submitted this could have implications for the safety of other clients, the staff or the community, however, in the present matter it is not put as highly by the Applicant “. . . as a risk to health and safety. We say it is a welfare matter.” 31

[63] The Respondent submits the impact of Ban 10 “. . is a classic case of inconvenience.” 32 The ban in respect of the RIDS and BSP’s applies to data entry and how DHS and the OSP get hold of information they require. It submits alternate arrangements have already been put in place to respond to the impact of the ban. In addition, the information required exists in each of the units or houses where residents are located.

[64] The evidence of Mr Lambrick indicated he assumed arrangements had already been made across local areas for RIDS data to continue to be inputted. He also had assurances from relevant staff they were attempting to keep up with reporting requirements, although these measures could introduce a significant element of error.

[65] Ms Cerolini’s evidence indicated all BSP reporting requirements had been completed in the initial reporting period, although the bans could mean information was incomplete as those inputting the data were not as familiar with what was happening in individual houses or units. She was not aware of this occurring to date “. . . but there is a likelihood that it could happen.” 33

[66] I am not satisfied the impact of Ban 10 on data entry updates to BSP’s and the RIDS is sufficient to meet the test required for an order pursuant to s.424. The ban has been in place for more than five weeks. No evidence was provided of incomplete or incorrect information having been entered. Alternate arrangements have been put in place to respond to the impact of the ban. This is undoubtedly inconvenient and diverting for those required to manage and be involved in this task, however, these arrangements to minimise the impact of the ban appear to be having the desired effect. Any impact stops short of that found to be required by, for example, the Full Bench in NTEU, or the Full Bench in ANF.

[67] The impact of Ban 11 is of most significance in the Applicant’s submission. This is an area of work where risks are already present on a daily basis to both employees and residents. The industrial action accordingly increases, rather than causes the risk, in its submission. It points to the evidence of Ms Williams and Ms Halewood, in particular, in support. In the Applicant’s submission Ban 11 creates the potential for staff vacancies to occur, compromising service delivery and exposing residents to an increase risk of harm. It submits there are parallels with the impact of the bans considered by the Full Bench in ANF. The Applicant also relies on the cumulative effect of action taken over an extended period of time and, in its words “. . . it's not the harm that has occurred to a resident or harm that has occurred to an employee, but the likeliness of that occurring.” 34 The prospect also existed at this point for the action to continue indefinitely.

[68] The Applicant also submits that once the Tribunal is satisfied the industrial action is creating the threat that is all the Tribunal is required to be satisfied about. In its submission:

“. . . We say once the tribunal is satisfied that the industrial action is creating the threat, that's all you're really required to do with regard to the Act. . .” 35

[69] It points to the fact the Act does not make reference to mitigation and an employer’s responsibilities in that regard. In any case bringing employees to work on overtime in response to industrial action is not a sustainable situation. It also points to the specific examples raised by Ms Halewood at PRS on 4 September where staff did not attend a meeting to discuss the approach to be taken to the care of a new resident. That resident was subsequently involved in an altercation with another resident on the next day. It submits the risk of unqualified staff being required to provide the high level of complex care and support extends beyond anything to do with inconvenience.

[70] It also submits DHS have “tried its hardest” to get the issues of concern resolved and points to the correspondence exchanged between the parties, and the requests to have the bans removed or exemptions provided, in this regard.

[71] The Respondent referred to a number of matters in response. In its submission there has not been any evidence of manifestation of the purported risk in the five and a half weeks the ban has been in place, and no practical evidence of the increase risk alleged by the Applicant. It referred, as indicated previously, to the Full Bench decision in NTEU in support of the need for exceptional circumstances to exist and for the impact, in its words, to be “. . . so severe that it is in the public interest that engaging in the industrial action should be ceased permanently or temporarily.” 36

[72] It also submits in considering any claim about increased risk Fair Work Australia should consider whether appropriate defensive action had been taken.

[73] In considering the nature of that risk the Respondent submits it is also a question of “probabilities” rather than “possibilities”. The onus is on the Applicant to satisfy this evidentiary requirement. It points to the limited evidence of concerns raised with HACSU about the impact of the bans and the repeated assurances from the Union that if issues concerning threats to health and safety were raised it would respond accordingly. The Respondent also refers to the evidence in the ANF matter that led the Full Bench to make an order in those proceedings. It submits that situation “. . is a world away from Colanda” with no evidence of anyone having suffered and no evidence that leads to a conclusion risk is about to escalate or be exacerbated.

[74] The evidence of Ms Williams, Ms Halewood and Mr Seabright is important in the determination of this issue. Ms Williams provided extensive evidence about the difficult working environment at Colanda. She expressed concern about the potential impact of Ban 11 in early August, prior to it coming into effect. She was concerned it would leave Colanda unable to provide a basic level of service to residents and its impact was in her view “disastrous”. However, despite that view her evidence also indicates no-one has been injured as a result of the bans being in place since 18 August. Some staff continue to be prepared to move between units and an exemption had been provided for Eagle Unit since 14 September. Additional overtime shifts were also being used to fill vacancies.

[75] Ms Halewood is responsible for 24 disability houses at PRS. She also has other responsibilities elsewhere. Her evidence indicates her concern about the ban on staff moving between locations. The staffing model is based on that occurring. She provided the example on 4 September, just over three weeks ago, when staff did not attend a meeting in another unit to discuss support strategies for a new resident. A Deputy Unit Manager attended instead in order to convey details of what was discussed. The Resident was subsequently involved in an altercation with another resident the following day. Ms Halewood’s concerns again were not that something had happened as a result of the ban, but about the likelihood an event could happen.

[76] Mr Seabright has worked at Colanda for 28 years. He is currently a Deputy Unit Manager of Wren Unit. His evidence indicated he is aware of staffing arrangement in all units at Colanda because of the requirement for staff back up in case of emergency. In his view the only impact of the ban has been a requirement to fill vacancies with additional overtime shifts. He was not aware of staff shortages that were out of the ordinary as a result of the bans. Filling vacancies was always a constant issue as the demands of the work resulted in staff being absent, including when they “retire” from duty during a shift because of the nature of the work involved. He did not accept the health and safety of staff or residents had been impacted. Health and safety concerns had not been raised with him. The bans were intended to impact financially by requiring extra overtime to be worked to maintain the same level of service. The ban did not extend to working extra overtime shifts. Mr Seabright's evidence was this had actually led to greater stability in staffing arrangements, and the care of residents, as staff called in on overtime shifts were generally selected because of their experience with that unit and its residents and routine.

[77] Section 424 requires a finding that protected industrial action is threatening to endanger, in the present matter, the personal safety and health, or the welfare, of the residents and/or staff at Colanda and PRS. The Full Bench found in NTEU this power should only be exercised in exceptional circumstances. Senior Deputy President Kaufman held in the Ambulance Victoria matter the threat should be one that is probable and not simply possible. Both parties in this matter made reference to the Full Bench decision in ANF. The Full Bench did make an order in those proceedings that protected industrial action be suspended for 90 days. It did so, in large part, because of a finding that:

“Although the industrial action by the ANF and its members has only been taken over a few days, there is substantial evidence about the serious impact that it has had on public health services and on the safety, health and welfare of some patients. There is also evidence as to the likely effect that the industrial action will have on patient safety, health and welfare if it is to continue into the future.” 37

[78] This describes a set of existing circumstances and likely future eventualities that is in significant contrast to the evidence about the current and likely future impact of Ban 11 in the present proceedings.

[79] Based on the submissions and evidence I am not satisfied the impact of Ban 11 is having the requisite effect to require an order to be made. A threat to personal safety and health, and the welfare of staff and residents already exists at Colanda and at PRS. The evidence of Ms Williams refers to the stress and fatigue suffered by staff at Colanda and to the incidence of injury and accident which already occurs on a weekly basis. Those responsible for managing this environment would be understandably concerned about industrial bans that add another layer of issues to be dealt with and responded to. The additional cost and arrangements associated with vacancies having to be covered by overtime shifts is no doubt a significant financial concern. However, such arrangements will often be the necessary response to dealing with the impact of protected action, and the scheme of the Act enables such action to be initiated and taken, including in a working environment like that in the units at Colanda or the houses at PRS.

[80] In addition, I am not satisfied that simply the existence of a threat to safety or health, or welfare, is sufficient, even if it exists in this case as a result of the bans. Decisions of this Tribunal suggest it must be something more than that and be an outcome that is probable, rather than simply a possible eventuality. The ban at the time this matter was heard had been in place for 39 days without manifestation of the threat alleged by the Applicant. That alone is not sufficient to militate against an order being made, however, it is a relevant consideration. Other evidence suggests the care of residents has in fact been more stable and consistent as a result of the ban and the consequent need to call in experienced staff on overtime shifts.

[81] The scheme of the Act enables protected industrial action to be taken in pursuit of an enterprise agreement. Section 424 recognises there may be cases where the impact of that action is such that the industrial action cease. Based on consideration of the evidence and submissions in this matter I am not satisfied such an order is warranted in the present matter. The Application is accordingly dismissed.

COMMISSIONER

Appearances:

F. Parry of Senior Counsel with R. Dalton of Counsel on behalf of State of Victoria - Department of Human Services.

R. Reitano of Counselfor Health Services Union.

Hearing details:

2012.

Melbourne:

September 26 and 27.

 1   PR529657.

 2   PR529657.

 3   PR526040.

 4   Exhibit P1.

 5   Exhibit P3 at paragraph 16.

 6   Exhibit P3 at paragraphs 52 - 53.

 7   Exhibit P3 at paragraph 54(e).

 8   Exhibit P5 at paragraphs 9 - 11.

 9   Exhibit P5 at paragraphs 39 - 40.

 10   Transcript PN780.

 11   Exhibit P6 at paragraph 46.

 12   Exhibit P6 at paragraph 65

 13   Transcript PN522.

 14   Transcript PN1407.

 15   Exhibit P7 - Letter dated 11 September 2012 from Jessie Maddison to Lloyd Williams.

 16   Exhibit P7 - Letter dated 14 September 2012 from Lloyd Williams to Jessie Maddison.

 17   Exhibit P7 -Letter dated 14 September 2012 from Jessie Maddison to Lloyd Williams.

 18   Exhibit R2 at paragraph 10.

 19   Transcript PN1105.

 20   [2011] FWAFB 8165.

 21   [2011] FWAFB 8165 paragraph [49].

 22   [2009] FWA 44.

 23   [2009] FWA 44 at paragraph 29.

 24   [2009] FWA 44 at paragraph 29.

 25   [2009] FWA 44 at paragraph 35.

 26   [2010] FWAFB 1014.

 27   [2010] FWAFB 1014 at paragraph 8.

 28   [2011] FWA 4782.

 29   [2011] FWA 4782 at paragraph [11].

 30   [2011] FWAFB 8165 at paragraph 55.

 31   Transcript PN1302.

 32   Transcript PN1360.

 33   Transcript PN450.

 34   Transcript PN1280.

 35   Transcript PN1289.

 36   Transcript PN1326.

 37   [2011] FWAFB 8165 at paragraph 52.

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