United Workers' Union v Mater Misericordiae Limited T/A Mater Group
[2023] FWC 1246
•26 MAY 2023
| [2023] FWC 1246 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
United Workers’ Union
v
Mater Misericordiae Limited T/A Mater Group
(B2023/489)
| COMMISSIONER SIMPSON | BRISBANE, 26 MAY 2023 |
Proposed protected action ballot of employees of Mater Misericordiae Limited Trading As Mater Group
This is an application by the United Workers’ Union (UWU/ the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Mater Misericordiae Limited T/A Mater Group (Mater/the Respondent).
The UWU filed the application on 22 May 2023, accompanied by a Form F34B Statutory Declaration in support of the application signed by Mr James McCall, Organiser employed by the UWU.
The same day email correspondence was sent from the chambers of Deputy President Clancy asking the Respondent to indicate whether it objected or consented to the application by no later than 11:30am on Tuesday, 23 May 2023. The parties were advised that if the Respondent objected to the application, the response was to contain details of the basis of the objection.
At 10:56am on 23 May 2023, the Respondent sent an email which indicated that the Respondent objected to the protected action ballot order. The matter was then allocated to Vice President Catanzariti. At 4:56pm on 23 May 2023, the chambers of Vice President Catanzariti sent correspondence seeking the Applicant provide a response to the Respondent’s correspondence regarding the objection.
At 1:15pm on 24 May 2023, the Applicant provided a response outlining proposed amendments to the Application in response to the Respondent’s objection including the removal of the proposed question 7 and amending question 9 which became question 8. The Applicant also proposed the amendment of paragraph 3 of the proposed order to include the word “sonographers”. The Respondent replied to this at 2:00pm this same day, indicating it still objected to the proposed questions 5,6 and 8 and would provide further reason by 4:00pm. The matter was then allocated to me and I listed it for hearing at 10:00AM Thursday 25 May 2023.
The Respondent provided further reason for the objection at 4:02pm on 24 May 2023.
Amendment
The Applicant sought to amend the application so that it read that the employees to be balloted are those sonographers who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the Applicant for this proposed for the protected action ballot order. At the commencement of the hearing on 25 May the parties consented to adjourning into conference to attempt to resolve the outstanding issues. In the course of the conference, the Applicant to consented to an amendment to the proposed words in the new proposed question 8 which resolved the Respondent’s concern with regard to that question. The disagreement concerning the wording of questions 5 and 6 could not be resolved and the hearing was resumed to determine the objection to those questions.
When the hearing resumed the Respondent confirmed it did not oppose the application made by the Applicant to amend the application and I exercised power under section 586 to grant the amendments to the application as sought. The amendments to the proposed questions to be put to the voters were now to read as follows:
“In support of reaching an Enterprise Agreement with Mater Group do you authorise protected industrial action against your employer, separately, concurrently and/or consecutively, in the form of:
1. An unlimited number of stoppages of work of 15 minutes duration?
YES [ ] NO [ ]
2. An unlimited number of stoppages of work of 1 hours duration?
YES [ ] NO [ ]
3. An unlimited number of stoppages of 2 hours duration?
YES [ ] NO [ ]
4. An unlimited number of stoppages of 4 hours duration?
YES [ ] NO [ ]
5. An unlimited number of stoppages of 1 hours duration for the purposes of speaking to the media about the reasons for the industrial action and the Union’s campaign for a new enterprise agreement?
YES [ ] NO [ ]
6. An unlimited number of stoppages of 1 hours duration for the purposes of distributing material and speaking to your employer’s customers and/or clients and/or their families and/or other members of the public about the reasons for the industrial action and the Union’s campaign for a new enterprise agreement?
YES [ ] NO [ ]
7. An unlimited number of indefinite or periodic work bans on the use of company standard email signatures including changing the email to campaign messaging?
YES [ ] NO [ ]
8. An unlimited number of stoppages of work of up to 1 hours’ duration?
YES [ ] NO [ ]
9. Limiting the number of ultrasounds and/or scans to be performed each shift, with a maximum of 1 scan and/or ultrasound per hour until completion of the shift?
YES [ ] NO [ ]
10. An indefinite period of refusal to provide printed keepsake images for private and/or bundle of joy patients?
YES [ ] NO [ ]”
Submissions
Questions 5 and 6
The Respondent submitted that the concerns are in relation to the words that follow the word ‘duration’ in questions 5 and 6, in that the words which follow describe activity which may be taken during a stoppage, but do not describe industrial action as it is defined by section 19 of the Act.
The Respondent submitted that some single member decisions have allowed questions which the Respondent would describe as being ‘combined questions’ which combine industrial action as defined by section 19 of the Act, together with activity which will be taken during that industrial action, which is not industrial action. The Respondent submitted this case is distinguishable for a range of reasons.
The Respondent submitted that Ambulance Victoria v United Voice [2014] FCA 1119 (AV v UV) is not authority for the proposition that the type of questions outlined in 5 and 6 is appropriate.
The Respondent submitted in that case, the Federal Court made it clear that the action in question (making response time data available to the media without approval) was not part of the duties of the relevant employees and therefore it could not be said that doing that thing in breach of their contracts of employment involved the performance of their normal work in a manner different from that which it is customarily performed. It said that a breach of rules, policies and contractual provisions which proscribe conduct by employees cannot be regarded as a departure from the customary manner of performance of an employee’s work. It said that what was proposed was the taking of action above and beyond and outside the range of their normal work rather than the placing of a restriction on the performance of those duties.
It was submitted by the Respondent that while the decision went on to say that the situation ‘might be different’ were the proposed conduct to include express provision for a stoppage of work that was not proposed in that case, it was not finally decided by the Court in that case.
The Respondent submitted that while it accepts that the Commission has, subsequently to AV v UV decision, adopted question wording which combines both industrial action as defined and descriptions of action which will be taken during the industrial action (such as HSU v Uniting AgeWell Limited t/a Uniting AgeWell[2023] FWC 392), the recent decision of CEPU v Downer EDI Engineering Electrical Pty Ltd[2022] FWC 364 contains an in-depth analysis of a PABO question similar in nature to the proposed questions 5 and 6 in light of the 2017 Full Bench decision in Mornington Peninsula Shire Council v ASU[2017] FWCFB 4740 and the Federal Court in AV v UV (see paragraphs [58] to [69]), before ultimately finding that the question did not specify a question which includes what is properly described as being in the nature of proposed ‘industrial action’, as defined by section 19 of the Act.
In any event, the Respondent submitted that even if the inclusion of an express stoppage of work in the question made the proposed action industrial action for the purposes of section 19 of the Act, it could not make the words of the proposed question beyond the actual stoppage industrial action. Those additional words (from ‘for the purposes of…’ onwards in questions 5, 6) remain action which is not industrial action. Those words therefore are not appropriate for a question in a PABO. The removal of those words reduces each of those questions to be identical to question 2, and they are therefore otiose.
The Respondent submitted that it is concerned that the purpose of coupling action which is industrial action with action which is not industrial action and can never be industrial is an attempt to cloak action which cannot be protected industrial action with the Commission’s imprimatur under the banner of protected action ballot. Mater is concerned that this will mislead employees about the effect of the protection offered to them by the PABO.
In the hearing, the Respondent referred to the case of Mornington Peninsula Shire Council v the Australian Municipal Administrative, Clerical and Services Union[2017] FWCFB 4740. The Respondent submitted that in that matter the Full Bench was required to look at and decide whether a number of questions in a protected action ballot involved industrial action as defined by section 19 of the Act. In relation to the proposed question 2 in that matter, the Full Bench looked at that question and whether it described industrial action, particularly at [27] where it was said:
“[27] We consider that the action for which authorisation is sought in 2 is the action of “interrupting work periodically, over an indefinite period or for specified periods”. That which follows merely describes conduct in which an employee will engage whilst interrupting his or her work. Viewed in this way, the action is quintessentially industrial action as defined. The activity in which an employee will engage during the interruption of work sets the period or duration of the industrial action, being the interruption to the work.…..”
The Respondent submitted in the hearing that this is an important aspect in this matter because the period or duration of the industrial action in question 2 in Mornington Peninsula was undefined. The Respondent submitted that in this case, the period of industrial action in questions 5 and 6 is perfectly clear, being a stoppage of 1 hour. The Respondent submitted that there is no need to describe activity which will be taken during that stoppage to describe the period or duration of the stoppage, because the question already defines that period. Accordingly, there no need for the extra words.
In the hearing, the Respondent further cited Mornington Peninsula where it says:
“That is, the interruption will occur for the period of time that it takes an employee to include the statement in a relevant email or emails that forms part of the work the employee normally performs before sending it to them.”
The Respondent submitted that’s not the case here. The Respondent submitted questions 5 and 6 are not to do with the job of a sonographer, and are in breach of the contract of employment, and outside the boundaries of what the employees would ordinarily be required to do, and the activities in questions 5 and 6 beyond the words “An unlimited number of stoppages of 1 hour duration..” can not be industrial action.
The Respondent submitted that Tracey J in AV v UV decided that certain activities described in proposed questions did not fall within the meaning of section 19 and could not fall within section 19(1)(a) or (b) because they were above and beyond the employees duties, and therefore could not place a restriction on those duties.
With regards to the amended question 9, the Respondent submitted in the hearing that depending on the nature of the industrial action which may ultimately be notified under the authority of that question subsequent to a protected action ballot being successful, that such action could have the potential for causing personal injury. The Respondent submitted that it’s likely to involve personal injury, which means that it wouldn’t be protected industrial action and there are a range of consequences which potentially fly from that action being taken, which is not protected by the Act.
The Respondent has submitted that the questions may lead to confusion amongst employees concerning whether the action proposed in the questions would receive the protection of the Act afforded by section 415. The Respondent further and submitted the questions could mislead employees into believing they will be protected when they will not.
The Respondent submitted that if the questions as drafted are included in the ballot the Union needed to be aware that the Respondent reserved its rights concerning the activities in questions 5 and 6 after the word duration, that the Respondent would seek to prevent that additional action if employees attempted to engage in it while undertaking a stoppage.
The Respondent accepted that the UWU had been genuinely trying to reach an agreement.
The UWU submitted that the Respondent’s objections should be rejected, and the FWC must make the orders as sought. The UWU submitted that the Mornington Peninsula 2017 decision is distinguishable as it was a different kind of action being taken in that case. The UWU relied on the Full Bench decision in the Mornington Peninsula 2011 decision where a disputed question pertained to the distribution of information to clients and the media about the reasons for industrial action and wearing campaign clothing. The majority Full Bench decision in that matter found that the action did constitute industrial action under section 19(1)(a) and (b).
The UWU also submitted that it is not possible to divorce the stoppage from the action proposed, however it is not possible to do so. The UWU said whilst there is a concern raised that if the action is notified and taken it may give rise to further applications, and the UWU said that is not a matter that can be resolved at this stage, and is not a subject the FWC should make a ruling on, and should be dealt with at a later time if they arise. The UWU said it has satisfied the statutory tests at section 443(1) have been met, and once that is done the orders should be made.
The Respondent submitted in reply that in relation to the Mornington Peninsula 2011 decision, the AV v UV and the Mornington Peninsula 2017 decisions effectively did not follow and overruled the 2011 decision.
Conclusion
The Commission’s power to make a protected action ballot order under s.443 of the Act is not discretionary. The Commission must make an order if two conditions have been met, firstly that an application for such an order has been made under s.437, and secondly that the Commission is satisfied that each Applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. I am satisfied on the material before me that those conditions have been met. Having reached that conclusion, the only issue that remains for determination is whether it is appropriate to amend the form of questions 5 and 6 sought by the UWU.
The circumstances in this case are distinguishable from the authorities relied upon by both the UWU and the Respondent in their submissions, in that the cases referred to dealt with consideration of whether certain activities fell within the meaning of industrial action as defined in section 19(1) (a) and (b).
This case does not involve such a consideration, but instead involves a consideration of whether the proposed questions 5 and 6 that, each question taken as a whole unarguably fall within the meaning of section 19(1)(c), may also include activities that would not fall within the immunity provided by section 414.
I am satisfied that the questions are sufficiently clear that employees are capable of responding to them. Once it is established, as is the case here, that the questions involve the taking of industrial action as defined by section 19, a dispute about whether industrial action that may be subsequently notified under section 414 in reliance on the ballot questions 5 and 6, is or is not protected, is a question properly deal with at the time of notification, and not at the time of the protected action ballot.
For the reasons set out above, I do not intend to make any further amendments to the proposed questions 5 and 6. I have decided to grant the application and issue the order in a form consistent with the amended version proposed by the UWU. I have amended the closing date for the ballot to afford the AEC additional time to conclude the ballot.
The UWU is clearly on notice that the Respondent has foreshadowed potential future disputation if industrial action is notified in reliance on ballot questions 5 and 6.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR762558>
0