B2013/1446, Transcript of Proceedings [2013] FWCTrans 936 (30 December 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1049309-1

DEPUTY PRESIDENT BOOTH

B2013/1446

s.437 - Application for a protected action ballot order

New South Wales Nurses and Midwives' Association; Australian Nursing and Midwifery Federation
and
Westmead Rehabilitation Hospital Pty Ltd T/A Westmead Rehabilitation Hospital
(B2013/1446)





Sydney

4.03PM, WEDNESDAY, 11 DECEMBER 2013

PN1

THE COMMISSIONER: Good afternoon. May I take appearances, please.

PN2

MS A. McCOSKER: Yes. If it pleases the commission, McCosker, A, representing the New South Wales Nurses and Midwives Association.

PN3

THE COMMISSIONER: Thanks, Ms McCosker. The respondent?

PN4

MR I. LITCHFIELD: Yes. Surname Litchfield, initial A, from Leana Street Consulting. I’m here as a bargain representative on behalf of Pulse, which is representing Westmead Rehabilitation Hospital.

PN5

THE COMMISSIONER: Yes, thank you. Ms McCosker, this is a section 437 application for a protected action ballot order and this is your application so would you tell me why I should grant that.

PN6

MS McCOSKER: Yes. If it pleases the commission, the Westmead Rehabilitation Hospital and NSWAMF enterprise agreement expired on 6 September 2013. Negotiations for the replacement enterprise agreement commenced on or around 28 August 2013 this year. The association is the bargaining representative for nurses at Westmead Rehabilitation Hospital and was informed from the beginning of negotiations that pay was the most important issue for those nurses, and they had stated to us that they had accepted a low pay offer in the last agreement as Pulse had said to them they were in financial difficulty.

PN7

Pulse had also stated to them that the next agreement that their pay would be adequately compensated to make up for that low pay offer. So there have been five negotiation meetings face-to-face since 29 August 2013 with the last meeting held on 16 October. Subsequent to that meeting on 16 October 2013, Pulse’s bargaining representative, Mr Litchfield, provided a further pay offer on 6 November 2013.

PN8

Members of the association when informed were not satisfied with the offer and advised Mr Litchfield and Mr McKay, who is the chief operating officer of Pulse Health who run Westmead Rehab, by correspondence on 18 November that the pay offer was still not sufficient. Mr Litchfield then provided a changed pay offer on 19 November via email. That was again taken to members at Westmead Rehabilitation Hospital and again, they advised that the wage offer was not sufficient.

PN9

Mr Litchfield and Pulse Health were advised of this by correspondence on 25 November. Again, Mr Litchfield and Pulse Health responded to us and stated that they would reiterate their previous wage offer and would not change those offers. Again, our members were consulted and they rejected the offers and Mr Litchfield was advised by telephone of the members’ response, that they would be taking industrial action in support of their claim.

PN10

These nurses are currently about 20 per cent behind their colleagues working at Westmead Public Hospital and the Westmead Private Hospital owned by Ramsay which are just down the road, so they feel quite strongly about this. They are also behind in pay rates compared to the two other Pulse hospitals, Foster Private Hospital and Bega Private Hospital. Westmead Rehabilitation Hospital is not an acute care hospital. It’s a small 60-bed hospital that provides specialist rehab care to in-patients as well as having multi-disciplinary day programs, so people coming into the facility.

PN11

It doesn’t have theatres and it does not have an emergency department, so nurses in the private sector in New South Wales rarely take industrial action and our members feel so strongly about the issue around their pay, they are wanting to take action to pursue their claim. They are always mindful their duty of care towards their patients and we can emphatically state on behalf of our members that if the commission proceeds to approve the application, members of the association at Westmead Rehab will ensure that there is always going to be a safe minimum level of staffing in operation at hospital and they will work with management to ensure that occurs when the action is happening accordingly.

PN12

THE COMMISSIONER: Thank you very much, Ms McCosker. Mr Litchfield, your view on the application?

PN13

MR LITCHFIELD: Your Honour, I was only about to see this application literally just before the meeting.

PN14

THE COMMISSIONER: Okay.

PN15

MR LITCHFIELD: And the reason for that it does – is because it was sent by fax, unfortunately at their end and appears on our end as well, we have problems with the fax machine.

PN16

THE COMMISSIONER: People still use faxes, do they?

PN17

MS McCOSKER: Yes.

PN18

MR LITCHFIELD: So I originally came to this hearing, I actually thought there was an insufficient or inaccurate tendering of documentation but alas, my fears have been allayed by Ms McCosker and she has got confirmation the fax had been sent, so obviously we’re going to go to two matters that should be talked about first of all, about the orders themselves and what I wanted to say about that. Then secondly about the actual offer itself. Now, before I get into the actual order, can I just put things on the record, please, your Honour, in relation to the offer.

PN19

THE COMMISSIONER: Sure.

PN20

MR LITCHFIELD: Now, this offer is actually what she has said, it has been rejected and she has made comparisons. I notice that Ms McCosker did not outlay what the actual two offers were. These offers are the highest offers in New South Wales nurses in any enterprise agreement for 2013, and I think you’re probably the best person to answer that, your Honour. They are two options.

PN21

The first option is three increases. 3.15 per cent increase on the approval of the proposed agreement. Another 3.15 per cent increase eight months later. Another 3.15 per cent increase 16 months after the original approval of the proposed agreement. There’s option 2 which is basically 4.725 per cent increase on approval, 12 months later, 4.725 per cent increase. Pulse have come into this and I think Ms McCosker cannot disagree with this concerning what we hope we have a quick turnaround.

PN22

There is no dispute that the original – the agreement that covers them now is it was a low pay offer and as I have been down here many times beforehand have outlined in terms of Pulse’s financial situation. Hence the reason why this offer can be increased is because their financial situations are changing for a variety of reasons as I alluded to to Ms McCosker. One of those reasons is securing a line of credit. That itself has saved the company significant amounts of money which hence, is able to be now passed onto staff.

PN23

I notice that Ms McCosker did not say what their offer was but to sit there and not deny these increases is very much (indistinct) cannot move, that is that is the highest they can go. The original offer was 3 per cent; 3, 3 and 3 per cent 16 months afterwards, and that was increased to 3.15 and that was our absolute limit. That was not to delay anything to do with the bargaining, to sit there and say, “This is the best we can do, please accept it”, allowing that the difficult circumstances the independent private hospital has rather than a Ramsay or a HealthScope where they have a different bargaining position in relation to – because their income is derived from health funds and that’s the problem that not only does Pulse but any other independent hospital in New South Wales faces.

PN24

So I want to put that just on the record that the offer made by Pulse is one that I feel should have been accepted in the first instance. This has been – the offer, option 1, was delivered - correct me if I’m wrong, early October.

PN25

MS McCOSKER: Yes.

PN26

MR LITCHFIELD: It took some six weeks later to get a written response from the New South Wales Nurses and Midwives Association and their members to actually confirm or deny or accept – whatever, reject the offer and it could have been done, so that was over now coming up to two months ago. Now leading up to the Christmas time period where unfortunately due to, as we can appreciate, people on annual leave, including myself hopefully, that this will now be delayed by another month, but be it as it may.

PN27

I just wanted to let you know that’s where the status of the play is, your Honour, just in relation to where the bargaining is. There is no dispute both parties have been trying to negotiate an agreement. Unfortunately, we feel the members of the Nurses and Midwives Association are being over optimistic or unrealistic in what they are trying to achieve. Given that’s any impost in relation to what they are accepting which is above 6 per cent is not substantial turning business, as you can probably appreciate. If I may, can I please go through the order and raise some of the objections about this.

PN28

THE COMMISSIONER: Certainly.

PN29

MR LITCHFIELD: As I have said, I have had very limited time to go over this and I have had brief conversations with Ms McCosker. First, in relation to order number 1, unlimited number of indefinite or periodic bans on the answering of telephone calls in the absence of a ward clerk. Whilst Ms McCosker is correct in terms of it is a rehabilitation hospital, emergencies do happen. We say that that is – and they are talking about a duty of care. I would like to know how, if an answering of a telephone call in an emergency situation sort of (indistinct) their duty in terms of duty of care. I put that to Ms McCosker directly.

PN30

In terms of point number 2, unlimited number of indefinite or periodic bans on provision of documentation to the patients on discharge, I am wondering how it is going to operate, is they are saying that alternative staff should happen to do that. If those provision of documentation relates to medical records or anything that needs signatures or sign off from that to say that certain events did occur just to appease the physician at the other end, is that going to happen or not happen.

PN31

Again, a limited number of periodic bans and the filling out of forms – the confirmation of discharges between 10 am and 12 pm. Same premise as point number 2. One is that information is related to critical needs of the patient in terms of their medical needs. Are they going to fill that in or out. Point number 4, thank you for Ms McCosker for informing us about that provision, there is no issue with that.

PN32

Again, point number 5, I can see the essence of where this is coming from and that should not be in issue, allowing that, but depending on the questions that are asked by the medical officer and the nurse who is assisting them. For instance, it could be a matter of historical reference that the nurse might have privy to about a certain patient in terms of their medication and including any adverse reactions to any medication. I’m just wondering how that is going to work.

PN33

THE COMMISSIONER: I suppose we should deal with these in an orderly fashion but what occurs to me in relation to number 5, presumably there would be notes.

PN34

MR LITCHFIELD: Notes, okay. What I am basically seeking from all of this is basically undertakings about how the operation (indistinct)

PN35

THE COMMISSIONER: Sorry, I’m off your plan.

PN36

MR LITCHFIELD: That’s all right. Again, for point number 6, if it happens to be some sort of emergency, again, I assist in undertaking from the nurses and midwives association that they will not stop or unassist anyone, actually, they will come to the aid of the patient or the client at times. Point number 7, I think that’s pretty standard in most orders. The final thing I seek of which Ms McCosker sort of alluded to that you may not accept, is that seeking that any notice period be five days, hence that the main reason for coming down here yourself, your Honour.

PN37

There has been various decisions, obviously you notice yourself, in terms of Foster Private Hospital which as we know last year was quite in-depth negotiation. There has also been other orders made, especially in relation to New South Wales about other hospitals, and namely from Commissioner Thatcher on 9 May 2011 for Eastern Suburbs Private Hospital.

PN38

THE COMMISSIONER: Would you have copies of those to tender?

PN39

MR LITCHFIELD: Yes.

PN40

THE COMMISSIONER: Does Ms McCosker have those copies?

PN41

MR LITCHFIELD: No I don’t, sorry. It was very late notice. The other thing too was Macquarie Hospital Services trading as Manly Waters Private Hospital, 28 June, Vice President Watson. Again, on 19 May 2011, Delmar Private Hospital, Commissioner Thatcher. So these are relatively standard procedures in a hospital given that it’s public interest, and finally, your Honour, on 19 September 2012 with Austin Private.

PN42

THE COMMISSIONER: I won’t mark these for the record. Mr Litchfield has indicated the matters that they pertain to. Each of them goes to the form of the order that will issue if I was persuaded that an exception to the default notice of the taking of industrial action were to be varied in the order.

PN43

MS McCOSKER: Yes.

PN44

THE COMMISSIONER: Thank you, Mr Litchfield. Any further submissions?

PN45

MR LITCHFIELD: Thank you. No, that’s it, thank you, your Honour.

PN46

THE COMMISSIONER: All right. Ms McCosker, I will obviously ask you to respond to those submissions and in particular, I’m interested in your reaction to the form of the order and whether any of the concerns that Mr Litchfield can be accommodated by consent.

PN47

MS McCOSKER: Yes. Firstly, I would like to state though on the record that Mr Litchfield states that it is the highest pay offer in New South Wales, something along those lines. We would just like to put on the record that these nurses – the reason that they require such a high pay offer is that they are coming off such a low base and really, that is what the crux of the issue is. In relation to the objection in relation to the first order, our suggestion would be in respect to emergencies, as it is a small facility, employment of a ward clerk or reception would be able to alleviate some of the concerns regarding an emergency situation and the answering of a telephone and that often occurs in both the private and the public sector with respect to answering telephones.

PN48

MR LITCHFIELD: Can I just – sorry to interrupt you. Is that internal phone calls, external phone calls, all phone calls?

PN49

MS McCOSKER: If a phone call comes through to a nurse – basically, it’s the phone call that comes through to the nurse’s station.

PN50

MR LITCHFIELD: Yes.

PN51

MS McCOSKER: So whatever phone calls come through to that nurse’s station would not be answered by the nurse, it would answered by a ward clerk.

PN52

MR LITCHFIELD: This hospital is 24/7. So you’re saying a ward clerk should be there 24/7?

PN53

MS McCOSKER: I’m not saying a ward clerk would be there 24/7. I’m saying that when there would be situations during the day which a ward clerk would answer those telephone calls. Anyway, the purpose of a nurse being employed in a facility is not to answer the telephone all day. The purpose of a nurse being employed is to provide care to the patients so they would not be there all day answering the telephone. It doesn’t happen at the moment.

PN54

THE COMMISSIONER: I suspect the inconvenience occasioned by the respondent and if that particular element of the order were to be successful in a protected action ballot or if the order for the ballot were granted and if that were contained within the order and the ballot was successful, then the inconvenience occasioned by the respondent would have - - -

PN55

MR LITCHFIELD: I’m thinking more alike the night shifts where there is very limited staff.

PN56

MS McCOSKER: What emergencies though are you thinking of, because it’s not acute care hospital, it doesn’t have an emergency department. The only emergency that would occur if something occurred with a patient, therefore they would call an ambulance and transfer to the acute hospital down the road. In that situation, a nurse would definitely be using a telephone but not particularly answering a telephone call unless it was in an emergency situation, the ambulance might be ringing you.

PN57

MR LITCHFIELD: Okay. As long as we seek an undertaking that any emergency work, that if there is a known emergency, that any nurse be it in AIN, EN or an RN, especially with the RN, will answer the telephone in such emergencies.

PN58

THE COMMISSIONER: Do you want to deal with the question of emergencies globally?

PN59

MS McCOSKER: Yes, because I think Mr Litchfield’s submissions touched on it in most points.

PN60

MR LITCHFIELD: Yes.

PN61

MS McCOSKER: I think that if we were able to add one sentence that covered all those particular orders, then I think that is the best way to proceed. I did have a set of words I was going to suggest.

PN62

THE COMMISSIONER: That will be very helpful.

PN63

MR LITCHFIELD: Obviously you had given it some thought, Ms McCosker.

PN64

MS McCOSKER: Of course, because I mean, as you’re aware, particularly registered enrolled nurses have a duty of care because they are registered and they enrolled and they really must act in the best interest of their patients.

PN65

THE COMMISSIONER: The inconvenience that you’re seeking to cost is to the respondent, not to the patient.

PN66

MS McCOSKER: Exactly. I was just reading off it.

PN67

THE COMMISSIONER: It will be there.

PN68

MS McCOSKER: It will be there.

PN69

THE COMMISSIONER: Just do it methodically and you will find it. We have our constraint on our side, waiting while you do.

PN70

MS McCOSKER: Here we go. Some of the wording was thinking was, “Subject always to there being a minimum safe level of staffing”. Then something along the lines of, “and ensuring that any emergency situations, nurses respond” - - -

PN71

MR LITCHFIELD: I’m just trying to help you out here.

PN72

MS McCOSKER: Yes.

PN73

MR LITCHFIELD: Before, maybe, in a manner not contrary to act of professional duties, or something. Enrolled nurses are not part of AHPRA.

PN74

MS McCOSKER: Yes, they are.

PN75

MR LITCHFIELD: Are they?

PN76

MS McCOSKER: Yes. They are enrolled.

PN77

MR LITCHFIELD: Okay. Well, conform with AHPRA professional standards.

PN78

MS McCOSKER: Do you think that that is suitable? That’s when you are the nurse, so I am just trying to think - - -

PN79

MR LITCHFIELD: I’m trying to think of something which is workable.

PN80

MS McCOSKER: Or in their professional obligation - - -

PN81

THE COMMISSIONER: Exercise - - -

PN82

MS McCOSKER: Yes. Exercise their duty of care.

PN83

THE COMMISSIONER: Or their professional obligations.

PN84

MS McCOSKER: Or their professional obligations. So keeping that in mind with respect to the other points, with respect to the second order and the provision of documentation to patients on discharge, it is something that we actually did discuss with the nurses at Westmead Rehabilitation Hospital and they have said that the documentation provided to patients who were on discharge is not things like instructions to their general practitioner or medical provision of pharmaceutical things, so scripts et cetera. It would not affect the patients in too much of a manner with respect to information that would go to their general practitioner after their discharge.

PN85

MR LITCHFIELD: I will accept that as an undertaking then, that’s fine. I’m happy to accept that.

PN86

MS McCOSKER: In relation to the periodic bans on the filling out of forms related to the confirmation of discharges between 10 am and midday on Mondays to Fridays, again the nurses had felt that this is a way of affecting the employer but it wouldn’t too much interfere with the patients and their discharge. Mr Litchfield did not have any issue with number 4 or 5 and again, 6 was in respect to emergency and we have already stated that we would provide an undertaking with respect to that.

PN87

THE COMMISSIONER: So in relation to 2, was it proposed that the wording of 2, it changed to reflect what you had said and what Mr Litchfield had responded to positively?

PN88

MS McCOSKER: We can change that. I had thought that perhaps a global undertaking with respect to the minimum safe levels of staffing and - - -

PN89

MR LITCHFIELD: Should suffice.

PN90

MS McCOSKER: And the professional obligations would suffice. A lot of these things come under that umbrella of their professional obligation as an enrolled or registered nurse particularly - - -

PN91

THE COMMISSIONER: On that point – just looking at what I have scribbled down what you have said and I put the word “discharge their professional obligations” might be more conventional than “exercising their professional obligations” if that is satisfactory.

PN92

MS McCOSKER: Yes, that is satisfactory.

PN93

MR LITCHFIELD: No, that’s fine, your Honour.

PN94

THE COMMISSIONER: All right. I need Ms McCosker’s response to the question of the five days in lieu of three days’ notice.

PN95

MS McCOSKER: Of course the association opposes the five days’ notice. As I have stated numerous times already with my submission, this facility is not an acute hospital, it’s a rehabilitation hospital. There is no emergency department, there are no theatres, there is no acute care. Most of the patients who are in there are coming there after they have already been in an acute care facility.

PN96

THE COMMISSIONER: Yes.

PN97

MS McCOSKER: Additionally, five days is quite a significant amount of time to provide notice to an employer when we are speaking about industrial action.

PN98

THE COMMISSIONER: Mr Litchfield, obviously I see that there have been a number – and myself have order in relation to an acute hospital albeit an elective surgery hospital but nevertheless, one that performs surgery.

PN99

MR LITCHFIELD: And also chemotherapy as well.

PN100

THE COMMISSIONER: There was a good reason for that.

PN101

MR LITCHFIELD: Yes.

PN102

THE COMMISSIONER: I am struggling to see the reason why five days would be necessary in a rehabilitation hospital so try and convince me of that.

PN103

MR LITCHFIELD: Okay. I am under instructions, your Honour. I made it quite clear that they feel like as a matter of consistency to this hospital to every other hospital that there should be an element of consistency to it. Your Honour, it is correct that it is not an acute care but (1) it still provides care to patients in various stages of their rehabilitation. The vast majority of their patients come through initially as after surgery, and again, like I said, this is also the first time I have seen these orders so please allow that I am a bit behind the eight ball in such a matter.

PN104

It was always felt that giving five days, given there could be adverse actions in relation to any industrial action that would enable the employer to prepare whatever response the nurses may want to take. For instance, especially the unlimited number of four-hour stoppages of all work. If that was to happen in three days’ notice, that would be catastrophic in terms of if the number of care – if it is a number of rolling stoppages which can happen, then what happens to the client, to the patients? Do they have to once again possibly be transferred to other hospitals because Westmead cannot care for the client or patient.

PN105

THE COMMISSIONER: So when you say rolling stoppages, it would be the case, would it not, that each lot of four hours would require - - -

PN106

MS McCOSKER: Three days.

PN107

THE COMMISSIONER: Three or five, depending - - -

PN108

MR LITCHFIELD: They can do it – certainly, again, say, hypothetically notify today which would mean it would happen, say, Sunday – no - - -

PN109

MS McCOSKER: No, three working days.

PN110

MR LITCHFIELD: No, three working days.

PN111

THE COMMISSIONER: Yes, three working days.

PN112

MR LITCHFIELD: Three working days, you’re right.

PN113

MS McCOSKER: Which is why I have an issue with the five days and when you take into account the weekend - - -

PN114

THE COMMISSIONER: It becomes seven.

PN115

MS McCOSKER: - - - it becomes seven which is a week’s notice.

PN116

MR LITCHFIELD: But especially in relation to rolling stoppages, if hypothetically just say it’s three days, so it’s Monday, if you notify us at 8 am, 12 pm, 4 pm that these are rolling stoppages, they could pose great inconvenience to – not inconvenience to obviously my client but also to the patient in need, not unless you’re willing to seek undertakings that there would be no rolling stoppages.

PN117

MS McCOSKER: We are not going to be undertaking that there will be no rolling stoppages. What we are undertaking is that we will always ensure that our members will ensure there’s a safe level of staffing within the facility and they will work with local managers to ensure that there is that safe level of staffing because I keep coming back to the fact that they are nurses, they have a professional obligation to those patients, they will not just walk out and leave them unattended or in any danger.

PN118

THE COMMISSIONER: I think you could probably leave it to me to make a decision in relation to that.

PN119

MR LITCHFIELD: Thank you.

PN120

THE COMMISSIONER: I have heard you both on it.

PN121

MR LITCHFIELD: Yes, thank you, your Honour.

PN122

THE COMMISSIONER: Anything else from either of you?

PN123

MS McCOSKER: No, that’s it.

PN124

THE COMMISSIONER: All right. I shall give you my decision. The members of New South Wales Nurses and Midwives Association has made application pursuant to section 437 of the Fair Work Act for a protected action ballot order in relation to the taking of industrial action by their members as part of the process of enterprise bargaining at the Westmead Rehabilitation Hospital Pty Ltd, trading as Westmead Rehabilitation Hospital, a division of the Pulse Health Group. The application is largely unopposed by the respondent, however there are elements of it that are and I will go to those in a moment. The history of the matter is that - - -

PN125

MR LITCHFIELD: Sorry, have you notified the Australian Electoral Commission?

PN126

MS McCOSKER: Yes.

PN127

MR LITCHFIELD: Okay.

PN128

MS McCOSKER: I have sent them a form and I actually spoke to them on the telephone yesterday.

PN129

MR LITCHFIELD: Okay. I was just wondering when you sent the form.

PN130

MS McCOSKER: When I lodged the application.

PN131

MR LITCHFIELD: Okay. It tends to be late – with that information, that’s fine. Sorry, they satisfied the section. Thank you. Sorry, your Honour.

PN132

THE COMMISSIONER: That’s all right. The history of the matter is that the current agreement has a nominal expiry date of 6 September 2013 and negotiations commenced for a replacement agreement on 28 August 2013. The parties have met on five occasions, on the last occasion, 16 October and since that time, parties have exchanged offers and counter offers in respect to a pay outcome in these negotiations. The last offer made by the respondent has been rejected by the members of the New South Wales Nurses and Midwives Association which I pause to indicate is a bargaining representative in the negotiations and there is no contest unto that status.

PN133

In that circumstance, the association has sought a protected action ballot order in order that its members may take industrial action of a designated type in support of the offer. The order sought contains seven types of industrial action and I will refer to each of them in order that either parties respectful submissions can be cased on the record. The first element of the proposed order is that an unlimited number of indefinite or periodic bans and the answering of telephone calls in the absence of a ward clerk be undertaken.

PN134

In respect of that, the association indicates that practical means are available to the employer to accommodate that action and in the event of a global addendum to the order, it has been put forward during this hearing which I will refer to shortly would address any adverse consequences of it. In response, the respondent is concerned about the adverse consequences that could occur if the telephone was not answered and he is not entirely satisfied by the global provision in relation to emergencies.

PN135

I find that that is an acceptable question in the protected action ballot on the basis of the emergency provision that I will refer to in a moment. In that, whilst of breaking convenience and probably expense, the respondent is in a position practically to mitigate a risk associated with that.

PN136

The second element is an unlimited number of indefinite or periodic bans on the provision of documentation to patients on discharge. Similarly, the applicant indicates that the global emergency provision would mitigate any adverse consequences of that. The respondent is concerned about it, however I believe that the emergency provision covers any risk associated with it and I will allow it.

PN137

The third element is a unlimited number of periodic bans and the filling out of forms related to the confirmation of discharges between them, 10 am and 12 noon in regard the submissions of both parties in relation to item 2 and my conclusion as applying to item 3. Item 4 is an unlimited number of indefinite or periodic bans on the performing of the midnight census. There is no issue with that on the part of the respondent and I allow that question.

PN138

The fifth is an unlimited number of indefinite or periodic bans on assisting visiting medical officers, check medication, and there is no issue with that on the part of the respondent and I will allow that question. Six is an unlimited number of indefinite or periodic bans on the admission of patients after hours. The applicant indicates that in their view, the global provision in relation to emergencies, we will deal with that matter. The respondent is concerned about it but I believe that this can be mitigated by practical steps that can be taken by the respondent and also by the emergency provision.

PN139

Finally, point 7, an unlimited number of four-hour stoppages of all work. The respondent has no issue with that question and I will allow it. Parties have agreed in the course of the hearing to one addendum which will read as follows, subject always to there being a minimum safe level of staffing and ensuring that in an emergency situation, nurses discharge their professional obligations. I will add that to the order.

PN140

A further addendum is sought by the respondent and that is that five days’ notice be provided for any industrial action that is taken should the ballot be successful and that is sought pursuant to section 443(5) which reads as follows. “If FWC is satisfied in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying a period of written notice referred to in paragraph 4142 being longer than three working days the protected action ballot order may specify a longer period of up to seven working days, period sought by the respondent is five, the justification for which is the fact that the premises, the workplace, is a health workplace and that there are a number of examples of where members of the commission, including myself, have acceded to a submission pursuant to that section of the act on prior occasions and that to do so again now would be consistent with that.

PN141

My view about that is that I must pay attention to the critical words “exceptional circumstances”. The act has contained three working days as the default position upon the consideration and decision of the parliament. Any variation to that is anticipated therefore by the legislature as having to justify and being in exceptional circumstances. This is a rehabilitation hospital. Certainly there are human beings who are affected and for that reason, I am very pleased that the parties have agreed on a provision in relation to emergencies but it’s not an acute hospital, it doesn’t have an emergency department and in that circumstance, I don’t think that five days is necessary for the employer to make whatever arrangements they will have to make, even in the event that all of the industrial action that is foreshadowed in the protected action ballot should it be successful is taken. The applicant points out that this is three working days and that five working days would in fact become seven days and I think that is too long and dilutes the purpose of this provision of the act which is quite unashamedly to provide leverage in the negotiation situation. For that reason, I decline the respondent’s application in that regard.

PN142

Pursuant to section 443 of the act, which is entitled on the FWC must make a protected action ballot order, I am satisfied that an application has been duly made under section 437 and I am satisfied that the applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted and that is in fact conceded by the respondent. I am satisfied in respect to section 443(3) that the content of the protected action ballot order is in accordance with the act and contains, pursuant to section 443(3)(a) a date by which the ballot must be conducted through the reference to no later than 15 working days. I will insert a date into the order to conform with that provision of the act which is - - -

PN143

MR LITCHFIELD: Yes, I was going to raise an issue. It is due to be 20 working days, your Honour. I’m just trying to find - - -

PN144

THE COMMISSIONER: We will just go off the record for a moment, if you wouldn’t mind so that we don’t have a funny decision.

OFF THE RECORD [4.41PM]
ON THE RECORD [4.44PM]

PN145

THE COMMISSIONER: Yes. Pursuant to section 443(3)(a), I order that the ballot be conducted by 15 January 2014. The proposed order by the applicant does not specify an alternative ballot agent but in fact specifies the Australian Electoral Commission. In consideration of all of the above, I grant the order and as amended by my decision and an amended order will issue. The commission is adjourned.

<ADJOURNED INDEFINITELY [4.45PM]