United Workers' Union v Healthcare Supply Partners Pty Ltd T/A Healthcare Logistics
[2024] FWC 2588
•19 SEPTEMBER 2024
| [2024] FWC 2588 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.459—Protected action
United Workers’ Union
v
Healthcare Supply Partners Pty Ltd T/A Healthcare Logistics
(B2024/1201)
| COMMISSIONER P RYAN | SYDNEY, 19 SEPTEMBER 2024 |
Application to extend the 30 day period in relation to B2024/947
Introduction
On 12 September 2024, the United Workers’ Union (UWU) made an application to extend the 30-day period for the commencement of protected industrial action pursuant to s.459(3) of the Fair Work Act 2009 (FW Act) (Application).
On 13 September 2024, the respondent to the Application, Healthcare Supply Partners Pty Ltd T/A Healthcare Logistics (Respondent), advised the Fair Work Commission (Commission) that it opposes the Application.
I listed the matter for hearing on 16 September 2024. I exercised my discretion to grant permission to the Respondent to be represented by a paid agent, as I was satisfied as to the matters set out in s.596(2)(a) and (b) of the FW Act. The UWU was represented by Mr S Howe of the UWU. The Respondent was represented by Ms R Davern of counsel.
Witness statements were tendered from the following persons, who also gave evidence at the hearing:
· Mr Aaron Behmer, Organiser employed by the UWU (Exhibit 1); and
· Mr John Barry Munnik, General Manager of the Respondent (Exhibit 2).
For the reasons that follow, I have decided to extend the 30-day period for the commencement of protected industrial action until 13 October 2024.
Relevant Background
The Respondent is a national logistics service responsible for the receiving, storage, and distribution of pharmaceutical products throughout Australia to various entities including pharmacies, public and private healthcare providers, major public and private hospitals, medical clinics, and specialist physicians.
The pharmaceutical products stored and distributed by the Respondent include high priority medications which are used to treat patients with serious health conditions or needs including, but not limited to, oncology drugs for the treatment of cancer, opioid dependency, cystic fibrosis, haemophilia, spinal muscular atrophy, multiple sclerosis, growth hormone requirements, frozen donor breast milk for premature babies, hypophosphatemia, acute hepatic porphyria, severe hepatic veno-occlusive disease, and leukaemia.
Depending upon the particular product, storage may be at an ambient temperature (15-25 degrees celsius), refrigerated/cold chain storage (2-8 degrees celsius), or frozen storage (either -20 or -80 degrees celsius). The Respondent tracks the transit and the delivery of all products.
The Respondent operates two storage facilities in Western Sydney and employs 142 employees to perform the work of receiving, storing, and dispatching the products. The Healthcare Logistics (NSW) Enterprise Agreement 2021 applies to those employees (2021 Agreement).
The 2021 Agreement reached its nominal expiry date on 31 December 2023.
On 19 October 2023, bargaining commenced for a new enterprise agreement. Between November 2023 and September 2024, there have been 11 bargaining meetings between the UWU and the Respondent. The Respondent has also participated in bargaining meetings with two employee bargaining representatives. Throughout this period the Respondent has requested the relevant employees to approve a proposed agreement on five occasions. On each occasion, the proposed agreement was not approved.
In the most recent vote, which took place on 12 September 2024, 36 employees voted to approve the proposed agreement, and 80 employees voted against the approval of the proposed agreement. The key issues in dispute are the rates of pay and the quantum of the casual loading.
Since March 2024, the parties have been subject to applications for protected action ballot orders and applications to terminate or stop threatened protected industrial action. I summarise the history of these matters below.
8 March 2024 Protected Action Ballot Order
On 6 March 2024, the UWU made an application for a protected action ballot order. On 8 March 2024, Deputy President Hampton granted the application and made a protected action ballot order (PR772185).
On 20 March 2024, the ballot result was declared with employees endorsing the taking of protected industrial action. In the following 30-day period, no industrial action was notified or taken.
On 22 April 2024, the UWU made an application pursuant to s.459(3) of the FW Act to extend the 30-day period in which industrial action is authorised. On 10 May 2024, Commissioner Tran granted that application and extended the period during which authorised protected industrial action may be commenced by a further 30 days to 19 May 2024 (PR774921).
On 10 May 2024, the UWU served a notice of intention to take protected industrial action in the form of an 8-hour stoppage at both sites on 17 May 2024. On 13 May 2024, the Respondent made an application pursuant to s.424 of the FW Act seeking to terminate the industrial action on the basis that it would threaten to endanger the life, personal safety of health or welfare of the population or of part of it.
The Respondent contended that the effect of the 8-hour stoppages would prevent the Respondent from being able to dispatch pharmaceutical products to customers. The Respondent contended that where it was the sole supplier of those products in Australia, or the products concerned were high priority medications, there was a real risk to the safety of persons reliant on those medications.
Following proceedings before Deputy President Grayson, the parties reached an agreement that five employees, including no more than two forklift drivers, could take part in the 8-hour stoppage on 17 May 2024.
On 17 May 2024, five employees took part in an 8-hour stoppage over both of the Respondent’s sites.
No other industrial action was notified or taken prior to 19 May 2024.
3 July 2024 Notification
On 3 July 2024, the UWU served a notice of intention to take protected industrial action in the form of 8-hour stoppages at both sites from 11:00pm on 10 July 2024 to 7:00am on 11 July 2024, and from 11:00pm on 11 July 2024 to 7:00am on 12 July 2024
On 8 July 2024, the Respondent made an application for pursuant to s.418 of the FW Act for orders that the unprotected industrial action not occur and not be organised.
This application was heard before Commissioner Matheson on 10 July 2024. At 9:15pm on 10 July 2024, the Commissioner ordered that the industrial action stop, not occur or not be organised (PR776898).
26 July 2024 Protected Action Ballot Order
On 25 July 2024, the UWU made an application for a protected action ballot order. On 26 July 2024, Deputy President Hampton granted the application and made a protected action ballot order (PR777540).
On 12 August 2024, the parties participated in a s.448A conference before me.
On 15 August 2024, the ballot result was declared with employees endorsing the taking of protected industrial action.
On 3 September 2024, the UWU served a notice of intention to take protected industrial action in the form of a 2-hour stoppage at both sites on 9 September 2024 and an indefinite ban on overtime at both sites commencing at 12:01am on 9 September 2024.
On 4 September 2024, the UWU served further notices of intention to take protected industrial action in the form of 2-hour stoppages at both sites on 10 and 11 September 2024.
On 5 September 2024, the Respondent made an application pursuant to s.424 of the FW Act seeking to terminate the industrial action on the basis that it would threaten to endanger the life, personal safety of health or welfare of the population or of part of it. Similarly to the earlier s.424 application, the Respondent contended that the combined effect of the rolling 2-hour stoppages and overtime ban would prevent the Respondent from being able to dispatch pharmaceutical products to customers, and that where it was sole supplier of those products in Australia, or the products concerned were high priority medications, there was a real risk to the safety of persons reliant on those medications.
In response to the s.424 application, the UWU withdrew the overtime ban and the stoppages on 10 and 11 September 2024. The UWU also undertook to ensure that 15 employees will not participate in the stoppage on 9 September 2024. On the basis of that undertaking, the Respondent withdrew the s.424 application.
On Monday 9 September 2024, 52 employees participated in the 2-hour stoppage.
The 30-day period ended on 13 September 2024.
Impact of Industrial Action on Respondent’s bargaining position
Mr Munnik stated that the industrial action taken to date, has not caused the Respondent to make a ‘better offer’ for the proposed enterprise agreement or change its bargaining position. However, in his evidence before the Commission, Mr Munnik:
· Stated that the 2-hour stoppage on 9 September 2024 had an impact on the Respondent’s business;
· Accepted that the 2-hour stoppage was at the lower end of the industrial action authorised by the protected action ballot order;
· Stated that it is important to the Respondent that its services are not disrupted;
· Accepted that if different industrial action is taken it may affect the Respondent’s bargaining position; and
· Stated that if further protected industrial action is notified, and the Respondent forms the view that that action will impact safety, a further s.424 application will be made.
Summary of the UWU’s Submissions
The UWU submitted that the Commission has jurisdiction to extend the 30-day period for the commencement of protected industrial action and that the Commission should exercise its discretion to do so in what is an orthodox application.
The UWU referred to the decision of the Full Court of the Federal Court of Australia in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union[1] and submitted that the determinative factor as to whether the Commission exercises its discretion is that there is continued support for the taking of protected industrial action.
The UWU submitted that the participation by 52 employees in protected industrial action on 9 September 2024 (noting the undertaking that 15 employees did not participate) demonstrates that majority support for the taking of protected industrial action remains current.
The UWU submitted, with reference to relevant authorities,[2] that the taking of protected industrial action is a legitimate measure to seeking improved wages and conditions in collective bargaining.
The UWU submitted the fact that it has not commenced some types of authorised industrial action within the 30-day period is not a basis for the Commission to refuse to grant an extension.
The UWU submitted that the purpose of the legislative provisions is to avoid the cost, delay, and inconvenience of putting the employees to another ballot where there is sufficient support for the taking of protected industrial action.
The UWU submitted that whether the Respondent might respond to a future notice of intention to take protected industrial action by making an s.424 application is irrelevant, as the assessment of any s.424 application must have regard to the particulars of the notified industrial action rather than the broader categories of industrial action.
Summary of the Respondent’s Submissions
The Respondent accepted that the Commission has the discretion to extend the 30-day period for the commencement of protected industrial action.
The Respondent submitted that the principles relevant to exercise of discretion were set out in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union[3] and Martime Union of Australia v DP World Adelaide Pty Ltd.[4]
The Respondent submitted that the Commission should refuse to exercise its discretion to extend the period having regard to the following matters:
· The nature of Respondent’s business is such that any substantive industrial action that is taken will threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it;
· If the application is granted and further industrial action is notified, the Respondent will likely be forced to file another application for an order to terminate it under s.424, to ensure the safety and welfare of the part of the population which relies on the critical, life-saving medications which the Respondent distributes;
· There is no utility in the application being granted, as the negotiations between the parties have been progressing well, as demonstrated by the fact that a significantly increased number of employees have recently voted in favour of the Respondent’s offer for the proposed enterprise agreement;
· The protected industrial action that has been taken under the July PABO, and the previous PABO, has not impacted negotiations or persuaded the Respondent to increase (or better) its offer;
· The UWU had the opportunity to take the other types of industrial action during the 30 days and chose not to, even in circumstances where there were negotiations about the extent to which action could be reasonably and safely taken; and
· An extension application should not be used to mop up action that has not been taken during the 30-day period. It is a “use it or lose it” regime under s.459(3) of the FW Act.
In making the Application, the Respondent submitted that the UWU is urging the Commission to ignore the circumstances of the Respondent’s business and the industry it operates in and that the taking of industrial action is limited by those circumstances. Moreover, the Respondent submitted that if the Application is granted, it will only lead to more litigation before the Commission. In this respect, the Respondent submitted that the preferable course would be for the UWU to undertake another ballot seeking authorisation for proposed industrial action that would not fall ‘foul’ of s.424.
The Respondent submitted that the authorities referred to by the UWU[5] are not relevant to this Application.
Consideration
Section 459 of the FW Act provides as follows:
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30 - day period starting on the date of the declaration of the results of the ballot; or
(ii) if the FWC has extended that period under subsection (3)--during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
(2) If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).
(3) The FWC may extend the 30 - day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and
(b) the period has not previously been extended.
There is no dispute, and I am satisfied, that an application to extend the 30-day period has been made (s.459(3)(a)) and that the period has not previously been extended (s.459(3)(b)). Accordingly, the Commission’s discretion to make an order is enlivened.
However, it does not automatically follow that the discretion will be exercised in favour of granting an extension merely because the jurisdictional prerequisites have been met. In DP World, Commissioner Hampton (as the Deputy President then was) stated:
…This discretion is however real, in that an extension need not follow a finding that the prerequisites have been met. I must be positively satisfied on the basis of the material before Fair Work Australia that I should do so. The length of the extension, if one is granted, is also a matter of discretion provided that it is no longer than 30 days.
[29] The discretions in this matter are to be exercised judicially and all relevant considerations taken into account. This includes the scheme of the Act, the conduct and circumstances of the parties and the consequences of any extension that might be granted.[6]
In this matter both parties agree that negotiations are progressing and there is no suggestion that either party is not bargaining in good faith. Nor is there any suggestion that the UWU is not genuinely trying to reach to agreement. In the period since the 26 July 2024 Protected Action Ballot Order was made, the parties have had further bargaining meetings and the employees were asked to vote to approve a proposed agreement, which resulted in the highest ‘yes’ vote, despite the proposed agreement being voted down.
In the same period, protected industrial action was taken on 9 September 2024. This involved 67 employees: 52 employees who actively participated plus 15 employees who agreed not to participate to ensure safety pursuant to the terms of the undertaking. This represents a majority having regard to the number of eligible voters in the declaration of results issued on 15 August 2024, and the absence of any evidence of any change in the disposition or composition of the employees.
The statutory framework allows for the taking of protected industrial action as necessary and important bargaining device to enable employees to achieve the best possible outcome. The requirements in s.459(1) of the FW Act are directed at ensuring that the authorisation which has been given by employees for the taking of particular industrial action remains current, in the sense that it continues to reflect the will of the majority of employees.[7]
Having regard to the material before, I am satisfied that majority employee support for protected industrial action remains current and has not evaporated.
I do not accept the Respondent’s submission that I should not grant the Application on the basis that any future threatened industrial action will inevitably lead to a further s.424 application. Authorised industrial action that was not commenced within the default 30-day period includes stoppages of 1-hour and 4-hours in duration. If this action is notified, depending upon the day and time of day in the notice of intention, the Respondent may form the view that there is no basis for a s.424 application. However, to decline to exercise my discretion on the basis that the Respondent will automatically make a s.424 application will require me to pre-empt the particulars of any potential future protected industrial action and that the threshold in s.424(1)(c) will be met. That is not the proper course.
While I accept that extending the 30-day period may lead to further litigation before the Commission, the Respondent’s preferred course leads to the same result – a further application pursuant to s.437 of the FW which may or may not be contested. If a further protected action ballot order was granted and protected industrial action is authorised and notified, this may lead to further application/s under s.424 of the FW Act.
I also do not accept that further protected industrial action in the form of shorter stoppages will not necessarily affect the Respondent’s bargaining position. Mr Munnik stated that the 2-hour stoppage impacted the Respondent’s business. The prospect of further stoppages of 1-hour, 2-hours or 4-hours and any impact arising out of that may cause the Respondent to reconsider its position. This is precisely how protected industrial action as a bargaining device is intended to operate.
For the foregoing reasons and having regard to the objects of the FW Act,[8] I have decided to exercise my discretion to extend the period in s.459(1)(d) of the FW Act until 13 October 2024.[9] This will avoid the unnecessary time, cost and inconvenience of a new ballot.
Conclusion
I am satisfied that the relevant requirements of the FW Act have been met and that pursuant to section 459(3) of the FW Act, the 30-day period for the commencement of authorised protected industrial action be extended until 13 October 2024.
An Order to that effect will be issued with this decision.
One final matter
Having regard to the background set out above, I recommend the parties consider seeking the assistance of the Commission to resolve the issues in dispute as expeditiously as possible through the making of an application pursuant to s.240 of the FW Act.
COMMISSIONER
Appearances:
Mr S Howe, for the United Workers’ Union.
Ms R Davern, of counsel for the Respondent.
Hearing details:
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
16 September 2024.
[1] [2014] FCAFC 8 (EnergyAustralia Full Court Decision) at [15]-[16] (per North and Bromberg JJ).
[2] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 at [57]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NSW Electricity Networks Operations Pty Ltd As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid[2024] FWCFB 333 at [31].
[3] [2013] FWCFB 2022 (EnergyAustralia Full Bench Decision) at [19]-[21].
[4] [2010] FWA 7638 (DP World) at [27]-[30], [33].
[5] See footnote 2 above.
[6] DP World at [28]-[29].
[7] EnergyAustralia Full Court Decision at [15].
[8] See s.3 and s.436 of the FW Act.
[9] See s.36(2) of the Acts Interpretation Act 1901; EnergyAustralia Full Court Decision at [19].
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