Victorian Hospitals' Industrial Association v Australian Nursing Federation

[2011] FWA 8271

[2011] FWA 8271

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418—Application for an order to stop or prevent industrial action

Victorian Hospitals’ Industrial Association
v
Australian Nursing Federation
(B2011/3474)

Health and welfare services
COMMISSIONER JONES	MELBOURNE, 23 NOVEMBER 2011

Application for an order to stop or prevent industrial action

[1] On 17 November 2011, Victorian Hospital Industrial Association (VHIA) filed an Application for an order under s.418 of the Fair Work Act (the Act) binding on the Australian Nurses Federation (ANF) , its delegates, officers, employees, agents and members of the ANF that industrial action stop, not be engaged in and not be organised.

[2] The matter was listed for Hearing at 5.30pm on 17 November 2011 and was adjourned until 9am on 18 November 2011.

[3] Mr Parry SC Counsel and Mr Snaden Counsel were granted permission to appear for VHIA and, Mr Gardner was granted permission to appear for the ANF. The VHIA called the following witnesses:

● Mr Djoneff, Chief Executive Officer VHIA
● Ms Diver, Executive Director Hospital Health Services

[4] At the conclusion of the hearing I gave an ex tempore decision and issued an order being the Nurses - Victorian Public Health Sector - Unprotected Industrial Action Order 2011 (the Order). The reasons for my decision edited from transcript are set out below¹:

Background

[5] VHIA is entitled to represent the interests of employers, being health service providers, listed at Schedule A to the Order (the Employers).

[6] In its application the VHIA set out the history of this matter which, in summary, is:

● On 5 October 2011, Fair Work Australia issued a single interest employer authorisation under section 249 of the Act (PR515271) (SIE Authorisation), authorising the Employers to negotiate an enterprise agreement (Proposed Agreement) to cover employees of the Employers, being Nursing Assistants, Registered Nurses, Midwives and Enrolled Nurses (the Employees).

● On 7 October 2011, Fair Work Australia issued a protected action ballot order (PR515437) (ANF PAB Order), which required the ANF to conduct a ballot of those of the Employees, whose bargaining representative is the ANF, who are midwives, registered or enrolled nurses other than mental health nurses whose employment was regulated by the Victorian Psychiatric Services Certified Agreement 2004 - 2007 (as varied).

● The ANF PAB Order sought approval of various forms of industrial action, for the purpose of supporting or advancing claims in relation to the Proposed Agreement (ANF Ballot).

● The ANF Ballot closed on 4 November 2011. On 4 November 2011, the Australian Electoral Commission declared the outcome of the ANF Ballot (Declaration of the ANF Ballot).

● On 4 November 2011, relying upon the Declaration of the ANF Ballot, the ANF served notices on every one of the employers who are covered by the SIE Authorisation, some 86 in number, notifying them of the ANF’s intention to organise industrial action by its members commencing on 10 November 2011, including bans on the collection of certain data, bans on the completion of certain paperwork and electronic forms in aged care facilities, and bans on overtime unless it is approved in advance (ANF notices of industrial action dated 4 November 2011). A Copy of one such notice is at Tab 24, Exhibit VHIA1.

● On 8 November 2011, relying upon the Declaration of the ANF Ballot, the ANF served notices on every one of the Employers (other than the Peter MacCallum Cancer Institute and the Royal Children’s Hospital), notifying them of the ANF’s intention to organise industrial action by its members commencing on 12 November 2011 (15 November 2011 in the case of Ballarat Health Services), including the closure of one in every three operational beds, the refusal to re-open non-operational beds and the cancellation of one in every three operating sessions - all with certain exemptions (ANF notices of industrial action dated 8 November 2011). A Copy of one such notice is at Tab 24, Exhibit VHIA1.

● Industrial Action was engaged in accordance with the notices dated 4 November 2011, from 10 November 2011 and 8 November from 12 November 2011.

[7] There is no dispute that this industrial action was protected industrial action within the meaning of the Act.

[8] On 16 November 2011, following application by VHIA under s.424 of the Act, a Full Bench of Fair Work Australia determined that protected industrial action engaged in by the ANF has threatened or would threaten to endanger the personal safety or health or the welfare of part of the population and that it was appropriate in all the circumstances to suspend the protected industrial action for a period of 90 days.

[9] The Full Bench issued an Order dated 16 November 2011, suspending protected industrial action with effect from 9am on 17 November 2011 for 90 days: PR516917 (Suspension Order).

Legislation

[10] Division 4 of Chapter 3 - Part 3 of the Act provides relevantly as follows:

“418 FWA must order that industrial action by employees or employers stop etc.

1. If it appears to FWA that the industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;

FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

2. FWA may make the order:

(a) on its own initiative; or
(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.

3. In making the order, FWA does not have to specify the particular industrial action.

4. If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order: or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that period;

FWA may state in the order whether or not the industrial action may be engaged in after an end of that stop period without another protected action ballot.

[11] I am satisfied by reason of s.413(7) of the Act, the effect of the Suspension Order is that any industrial action in relation to the proposed agreement after 9am on 17 November 2011 for a period of 90 days is unprotected industrial action. I am further satisfied that the VHIA, by reason of the SIE Authorisation, falls within subsection 418(2)(b)(ii) of the Act and is entitled to make an application under s.418 of the Act

Issues to Determine

[12] FWA has no jurisdiction to make an order under s.418 unless it is satisfied that unprotected “industrial action by one or more employees:”

(a) is happening; or

(b) is threatened, impending or is probable; or

(c) is being organised.

[13] If I am satisfied that one of these conditions exist, then I must make an order that the industrial action stop, not occur or not be organised (as the case may be).

[14] The correct approach to s.418 is that an Order that industrial action is contingent upon a finding by me that unprotected industrial action is happening. Similarly, I must first find that unprotected industrial action is being threatened, impending or probable before I can order industrial action not occur. Finally, I must be satisfied and find unprotected industrial action is being organised before I am empowered to order industrial action not be organised².

Is unprotected industrial action happening

Evidence

[15] Mr Parry tabled a bundle of documents, Exhibit VHIA1, which included at Tab 49, a “Summary Report of Impact of Industrial Action” (Summary Report). This was said to be a self report by various hospitals to the Department of Health at midday on 17 November 2011 setting out in tabular form General Beds Closed due to action as at 17 November 2011 and Cumulative Elective Cases Postponed.

[16] Mr Djoneff gave evidence that the material contained in Tab 49 was collected by the Department of Health and was in effect a mid-day census taken by each Hospital/ Health Service provider of bed closures and cancellations of elective surgery.

[17] The Summary Report for 17 November 2011 reported 458 beds were closed.

[18] Mr Djoneff also gave evidence that he had had on 17 November 2011, a teleconference with Directors of Nursing of public Hospitals who reported industrial action was continuing. He further stated that at 4pm on 17 November 2011 he had a teleconference with CEO’s and their Deputies of metropolitan health services who confirmed that industrial action was continuing. Mr Djoneff was not cross examined by Mr Gardner.

[19] Mr Parry also referred to various copies of emails from Nurse Unit Managers, Support Services Managers, Hume Resource Co-ordinators dated 17 November 2011 regarding in general information they have received of continuing industrial action (Tab 43, Exhibit VHIA1).

[20] Ms Diver gave evidence as to the collation and preparation of data presented in tabular form under the heading “Summary Report of Impact of Industrial Action” for the days 12 November 2011, 13 November 2011, 14 November 2011, 15 November 2011, 16 November 2011 and 17 November 2011 (Tabs 44-49, Exhibit VHIA1). She stated that a self report process was established under which hospitals and health service providers were instructed to provide information on the impact of the industrial action engaged in pursuant to the ANF notices of industrial action dated 4 November 2011 and 8 November 2011. She stated that in her opinion the data collected and presented in each of the Summary Reports was a fair reflection of the impact of industrial action, that the Tables dated 12, 13, 14 and 15 November 2011 were before the Full Bench in the Suspension Order proceedings and that, as far as she was aware, the ANF had not questioned the veracity of the tables. She stated that on 17 November 2011, at around 3.30pm, she had a teleconference with Chief Executive Officers of the larger health services who advised industrial action was continuing including bed closures. She stated that on the morning of 18 November 2011 she met with Directors of Nursing from various health service providers who informed her that bed closures were continuing.

[21] Mr Gardner for the ANF submitted that his instructions were that there was confusion as to whether industrial action was happening. He stated that the ANF was not in a position to call evidence that industrial action is not happening in relation to the proposed agreement.

Conclusion

[22] I am satisfied that unprotected industrial action, including closure of beds, of the type specified in the ANF notices of industrial action dated 4 November 2011 and 8 November 2011 is happening. Therefore, I must therefore order that the industrial action stop.

Is unprotected industrial action threatened, impending and probable: s.418(1)(b)

Evidence

[23] Mr Parry relied on copies of various updates issued by the ANF to its members commencing at 9.30am on 17 November 2011 and continuing throughout the morning. These are at Tabs 39 to 41 of Exhibit VHIA1. These updates speak for themselves:

● Tab 39 - Update Number 10 issued at 9.30am on 17 November 2011 states in part:

“A Full Bench of Fair Work Australia has handed down its decision concerning the application by VHIA to terminate the protected industrial action being undertaking by ANF members employed in the single interest employer authorisation group.
FWA has decided to suspend the protected industrial action for 90 days effective from 9am on Thursday, 17 November 2011. At this stage, FWA has not issued its reasons for its decision in full but will do so in due course.
Members are reminded that we resolved that our industrial action would continue until an agreement was accepted at a state-wide members meeting - a meeting is scheduled for Monday, 21 November 2011 at 2pm at Festival Hall”

● Tab 40 - Update Number 11 issued at 10.30am on 17 November 2011 states in part:

“The Australia Nursing Federation (Vic Branch) executive met this morning and determined that our industrial campaign will continue despite its suspension by Fair Work Australia late yesterday.
Consequently, all industrial action resolved at the state-wide meetings of 4 and 11 November remains in place.
Members will reconsider the industrial action being undertaken at our state-wide members meeting scheduled for Monday, 21 November at 2pm at Festival Hall.

● Tab 41 - Update Number 12 issued at 10.30am is headed “This update provides some guidance for members who are implementing industrial action”. The update states in part:

“From 9.00 am on 17 November 2011, the industrial action is deemed to be unprotected.

We recommend that you respond as follows:

“I believe that our industrial action is in the interests of our patients, our profession and our community. I will remain at work and continue to provide care for patients. Industrial action will only be listed when an accepted agreement is approved by a state-wide meeting of ANF members.”

[24] Mr Snaden tendered a further update (VHIA3) dated 17 November 2011 - 5.30pm. This update, in reference to the proceedings states:

“We anticipate that a decision will be most likely handed down this evening. Members should note that ANF will carefully consider this decision overnight and will update members as soon as practicable in the morning on Friday, 18 November 2011.”

[25] Mr Snaden submitted this update is consistent with their submission that industrial action is continuing.

Conclusion

[26] I am satisfied, having regard to the evidence, that unprotected industrial action in relation to the proposed agreement of the type specified in the ANF notices of industrial action dated 4 November 2011 and 8 November 2011, is threatened, impending or probable. Consequently, I must order that the industrial action not occur.

Is unprotected action being organised

[27] I am satisfied having regard to the Updates issued by the ANF (referred to above) that unprotected industrial action of the type specified in the ANF notices of Industrial Action dated 4 November 2011 and 8 November 2011, is being organised. Consequently, I must order that the industrial action not be organised.

The Order

[28] I have considered the draft order filed by VHIA (Exhibit VHIA4) and in doing so have adopted the approach that the order must have a rational or logical tendency to stop or prevent industrial action and/or its organisation.

[29] I note that the draft order provided for a stop period of 90 days. This reflected the period of suspension determined by the Full Bench in its Order dated 16 November 2011.

[30] I am not satisfied that this stop period under an Order to Stop industrial action under s.418 of the Act should mirror the period of suspension in an order to suspend industrial action in relation to a proposed agreement made under s.424 of the Act. The former is directed to stopping industrial action that is happening, threatening or being organised. The latter is directed to suspend protected industrial action in relation to a proposed agreement in specified circumstances.

[31] Further, I have first indentified the industrial action that, on the evidence provided, appears to me be happening, threatened, impending or probable, or being organised and framed the Order having regard to this industrial action that is the subject of the application before me³.

[32] I have determined that an appropriate period for the operation of the Order, taking into account the evidence and circumstances before me, is from 7.30pm, 18 November 2011 to 9am, 12 December 2011.

[33] I have further decided that the Order require the ANF to inform its members of the Order by 4.30pm, 18 November 2011.

COMMISSIONER

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______________________________________________________

¹ Transcript of proceedings, 18 November 2011 at PN 284-317.

² Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84; applied in AMWU v UGL Resources Pty Ltd; Conneq Infrastructure Services (Australia) Pty Ltd [2011] FWAFB 4777

³Transport Workers Union of New South Wales v TNT op.cit at 39. The observations of the majority of the Full Court regarding the duty and power of the Commission was made in relation to section 496(1) of the Workplace Relations Act, 1996 which was substantially the same terms as section 418 of the Act.