The Association of Professional Engineers, Scientists and Managers, Australia v HPS Services Pty Ltd

[2024] FWC 2482

[2024] FWC 2482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Association of Professional Engineers, Scientists and Managers, Australia
v

HPS Services Pty Ltd

(B2024/1195)

COMMISSIONER PERICA MELBOURNE, 12 SEPTEMBER 2024

Proposed protected action ballot of employees of HPS Pharmacy Services Pty Ltd

1. This is an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of HPS Services Pty Ltd (HPS).

1. On 12 September 2024, the Commission was advised that HPS objected to the application on the grounds that the questions outlined for ballot in the order do not comply with the requirements of section s 437(3)(b) of the Act and accordingly, any order made containing those questions for ballot cannot comply with s 443(3)(d).

1. This matter was listed for a hearing on 12 September 2024 at 2:00 PM. In attendance for APESMA was Ms. Margaret Buchanan and Ms. Miranda McDonagh. Mr. David Gulland, General Manager and Josh Dray, Head of People – Pharmacy Services, EBOS Group Ltd attended for HPS and were represented by Mr. Aaron Goonrey, Ms. Emma Lutwyche and Mr. Jeremy Bilski of Pinsent Masons.

1. During the hearing of the matter, the parties requested time to confer. The result of that was HPS dropped its objection to several questions and APESMA requested that two of the questions be amended. The questions which APESMA requested to be amended were questions 3 and 11. Those amended questions would read as follows:

Question 3: A ban on the charging for in-patient medications for either a specified period of time or to continue indefinitely?

Question 11: An unlimited number of periodic or continuous activation of the “out of office” function and/or the email signature to include campaign material? 

Objections to questions 3 and 5

1. Following the consultation, only two questions remain to which HPS objects:

Question 3: A ban on the charging for in-patient medications for either a specified period of time or to continue indefinitely?

Question 5: An unlimited number of indefinite or periodic bans on assisting with, or submitting high-cost drug forms, telephone authorities, and/or informed financial consent forms? 

HPS objections

1. HPS argues that neither of these questions are sufficiently clear. It also argues that the action referred to in the questions would not attract immunity under s 415 of the Act. It argued that action in both cases “involves unlawful taking, keeping or use of HPS’s property and therefore does not attract immunity under s 415(c)”.

1. HPS relies on the decision of the RTBU v. Sydney Trains[1] at paragraph [26] to support the proposition that the actions proposed in the questions is not industrial action. In that case, the balloted question was about taking industrial action in the form of opening ticket gates and deactivating opal card readers on trains so that the public would be unable to pay for their use of public transport. The employer opposed the making of the PABO and argued that proposed industrial action did not attract legal immunity. The Commission did not determine the immunity question, however, in the course of his decision, Deputy President Easton stated:
   
   

   “… it is quite possible that the other conduct relating to the Opal readers, being the deactivating of opal readers and gates, ensuring that opal readers and gates remain deactivated and so on, is not industrial action and the immunity of s.415 does not apply to this conduct [emphasis added].”

1. HPS also argues the proposed action in questions 3 and 5 does not constitute industrial action within the meaning of section 19. It argues the actions go further than being either the performance of work in a different manner from which it is customarily performed, or a restriction or limitation or delay in the performance of work. HPS argues the action “is more parallel to criminal activity within the ordinary meaning of fraud, theft and/or extortion”.

1. HPS argues the question of whether the actions referred could be protected action is distinct from the question of whether the balloted questions could be “industrial action” at all. It relies on a passage from NTEU v. Curtin University:[2]

“In summary, therefore, an application for a protected action ballot order will comply with the requirement in s 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1).”[emphasis added]

APESMA Response

1. APESMA argues the questions could amount to industrial action in the context of the work of their members. It also argues if the formal requirements of s 437 are made out that is sufficient even where there is a risk that the action referred to in the questions could be unprotected action under s 415.

1. On the immunity question, APESMA submitted:

“In our submission, the fact that an employee is not performing a particular task such as charging for the cost of medication does not mean they are acting illegally. We reject the contention that this is analogous to Sydney Trains action which involved the disabling of Opal machines by which passengers are charged their fares.

The charging and the requirements related to high cost medicines are specific tasks among others that pharmacists perform and on that basis can be the subject of industrial action.

We also submit that the employer has not provided sufficient evidence of the work performed by the employees to be balloted to form a view that the action falls foul of the s 415 immunity otherwise afforded to protected action.”

1. APESMA relies on a decision of a Full Bench of this Commission in Mornington Peninsula Shire Council v. ASU[3] at paragraph [26] in support for the proposition that I should be satisfied that the action referred to in each of the contested questions is industrial action under s 19:

“The question whether action described in an application for protected industrial action ballot order is capable of being properly described as industrial action within the meaning of s 19 of the Act is answered primarily by construing the words used in any proposed question, ascertaining the nature of the action described by the proposed question and determining whether the action (having regard to the work performed by employees who are balloted) is capable of falling within the exhaustive statutory definition of industrial action.”

Consideration

1. I have considered the matters put to me in relation to the excision of questions 3 and 5 from the Ballot Order. I consider both questions have sufficient specificity to meet the requirements of s 437(3)(b) and could meet the definition of industrial action in s 19.

1. It is contested the actions referred to in the questions can be categorised as criminal or as falling within the limitation of immunity under s 415(1)(c). Short of these matters being positively and finally determined, it does no violence to the English language to describe the action as a “ban limitation or restriction on the performance of work”. I am satisfied consistent with Curtin that the proposed action in both questions is of a “kind or sort capable of constituting industrial action”.

1. The issue of whether I should include questions that could lead to unprotected action under s 415(1)(c), and therefore not obtain the cloak of immunity, is a difficult one.

1. The purpose of a ballot order is to provide employees with the democratic opportunity to vote on what classes of industrial action they wish to pursue. Should the voting employees vote for action of this kind, it could be that they are exposed to the risk of a s 418 order or injunctive or other relief available through the general law.

1. I have only received and heard limited submissions and received no evidence on the question of whether immunity would cover employees who take action of the kind referred to in the questions. APESMA contends industrial action of this kind does not offend s 415. HPS adamantly contends that it does and that the action proposed in the questions are irredeemably “akin to theft”. I take the point made by APESMA the action of disabling opal machines is materially different from the action at issue here. This contest of the parties on this issue is not a firm foundation to excise the questions from the proposed order.

1. If the submissions of HPS are correct, it has remedies available to it to prevent the action taking place. At the ballot order stage, such action is merely notional. The prospect of the members of APESMA taking action consistent with the questions is predicated on the question being voted up and a compliant notice being provided to the employer.

1. APESMA is on notice with respect to the likely consequences should its members take the action approved of by these questions. Strategic decision-making can take place on the risks involved. In those circumstances and after considering all the submissions put to me, I have decided to allow those questions to be included in the order.

Genuine Bargaining and notification time

1. On the basis of the material before me, including the declaration of Ms. Miranda Odette McDonagh, Union Official, setting out the steps taken by APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with HPS, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s 443(1) of the Act have been met.

Other matters

1. The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 24 September 2024.[4] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

1. An Order has been separately issued in PR779179.

1. The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

COMMISSIONER

[1] [2022] FWC 2615.

[2] [2022] FWCFB 204 at paragraph [5].

[3] [2017] FWCFB 4740.

[4]The Application sought for the ballot to be open for a period of 7 days. This date reflects a ballot of approximately 7 days from the anticipated commencement date of the ballot.

Printed by authority of the Commonwealth Government Printer

<PR779178>