Note: Judicial review of this decision [VID1289/2011] discontinued 20 December 2011.

[2011] FWAFB 8165

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FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action

Victorian Hospitals' Industrial Association

v

Australian Nursing Federation
(B2011/3455)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER LEWIN

MELBOURNE, 15 DECEMBER 2011

[1] On 14 November 2011 the Victorian Hospitals’ Industrial Association (VHIA), as the bargaining representative for various employers in the Victorian public health system, made an application pursuant to s.424 of the Fair Work Act 2009 (the Act) for an order to terminate protected industrial action that was being taken by the Australian Nursing Federation (ANF) and its members. Subsection 424(3) requires that Fair Work Australia (FWA), as far as practicable, determine such an application within 5 days after it is made.

[2] The application was heard by the Full Bench on 15 and 16 November 2011. In the course of the proceedings, the parties presented witness and other evidence in relation to the industrial action and its impact. At the conclusion of the proceedings on 16 November, the following decision was given:

[3] We now provide the reasons for the decision.

[4] The application by the VHIA seeks an order to terminate protected industrial action which is being engaged in by the ANF and its members in support of claims being pursued for nurses and midwives employed in the Victorian public health system. The VHIA is the bargaining representative for the employers concerned, which are the hospital and health services specified in a single interest employer authorisation made on 5 October 2011 (PR515271). The application was supported by the State Government of Victoria. It was opposed by the ANF and the Health Services Union (HSU).

[5] The background to the industrial action and the grounds relied upon by the VHIA, as set out in the application, may be summarised as follows:

[6] The most significant bans in terms of their impact on the Victorian public health system are those implemented in accordance with the resolution of the meeting of ANF (Victorian Branch) members held on 11 November 2011. The resolution refers to the implementation of further bans from 12 November 2011 which “will remain in place until a new agreement is reached that is accepted by a further statewide meeting of ANF members.” In relation to public sector acute, aged care and community health facilities, the bans specified in the resolution include the following:

[7] The resolution provides for exemptions as follows:

[8] The resolution also provides that the bans are to be implemented “subject to the proviso that the ban or refusal will not threaten to, or endanger anyone’s personal safety, or their life, health or welfare”.

[9] On 11 November 2011, the ANF in an update on the dispute advised its members about the additional bans to commence on 12 November 2011. In a further update on 13 November 2011, the ANF notified its members that:

The ANF also advised that:

The application

[10] The application by the VHIA is for an order to be made pursuant to s.424 of the Act terminating the protected industrial action being taken by the ANF and its members. It was submitted by the VHIA that the industrial action would, or was likely to, substantially and adversely impact on the ability of Victorian public hospitals to provide essential health services to the Victorian public and threatened to endanger the life, personal safety, health and/or welfare of part of the population. The part of the population concerned is patients, potential patients and those on the waiting lists of Victorian public hospitals and the families of such people.

[11] Section 424 of the Act provides as follows:

[12] Section 424 provides that FWA must make an order suspending or terminating protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety or health or the welfare of the population or part of the population or to cause significant damage to the economy. Whether an order should be made under s.424 will be a matter to be determined upon a consideration of all the circumstances and having regard to the evidence and submissions before FWA.

The evidence

[13] The evidence presented in the proceedings was largely directed at the impact of the protected industrial action on the operation of the Victorian public health system and on the users of the system.

[14] The VHIA witnesses were:

[15] The witnesses called by the ANF were:

[16] We do not seek in these reasons for decision to set out in detail all the evidence presented in the proceedings. In brief terms, the evidence was to the following effect.

[17] Mr. Djoneff of the VHIA gave evidence about the background and history of the EBA negotiations, including the protected action ballot of ANF members, the communications from the ANF regarding the taking of protected industrial action and the fact that conciliation proceedings were being conducted under s.240 of the Act. He referred to discrepancies and confusion about bed closures as a result of the industrial action and the consequent tensions at the workplace and stress for those directly involved. He described the notification process proposed by the ANF in relation to the industrial action, whereby health services might notify the ANF of concerns over the endangerment of health, safety or welfare, as being “completely impractical” and as requiring hospitals to “horse-trade and negotiate about which patient is of a clinical severity to admit or ... be exempted”.

[18] Ms. Diver from the Department of Health advised that the 86 public and denominational hospitals involved in the EBA negotiations have a capacity of approximately 19,500 beds and admit in the order of 1.5 million patients per annum. In 2010-2011, almost 1.5 million people presented to an Emergency Department for treatment and Victorian public health services admitted approximately 154,000 elective surgery patients. In her statement, Ms. Diver explained the different types of bans imposed by the ANF and their impact on public health care providers and patients. She anticipated that the ANF’s industrial action would have a significant impact on the ability of hospitals and health services to treat patients. The likely significant impacts would include: delays in admissions and discharge from hospitals; delays to elective surgery treatment; backlogs in Emergency Departments; ambulance delays; and delays in access to specialist care, outpatient clinics and subsequent treatment. It was said that such delays can put patient safety at risk and can have a negative impact on the overall quality of care and patient health outcomes. It was also said that the bans on referrals and the closure of beds and elective surgery will have a cumulative effect across the State. The longer the bans continue, the more difficult it will be for the health system to recover and the worse the impact will be on patients. Ms. Diver referred to the impact of the bans at Western Health and gave examples where there were significant delays associated with individual patients who were adversely impacted as a direct consequence of the industrial action.

[19] Ms. Diver advised that up to 15 November 2011, as a result of the ANF industrial action, there had been 969 general beds closed across the Victorian public health sector and 311 elective surgery cases postponed. She gave evidence about acceptable and target levels within the public health system for hospital-initiated postponements of elective surgery, patients staying in Emergency Departments for longer than 24 hours and ambulance bypass. She also described the impact of ANF industrial action during the 2007-08 disputation on the treatment of urgent patients.

[20] Ms. Chalmers gave evidence regarding Southern Health and the impact of the industrial action on its services. Southern Health is the largest metropolitan health service in Victoria and covers a population of over 981,000 people. It has 46 sites across the south eastern suburbs of Melbourne, including 6 major hospitals. Ms. Chalmers said that the ANF bans will result in delay or inconvenience for patients and that adverse consequences would range from moderate to severe. She explained how the various bans would impact on Southern Health services and the effect on patient care and health outcomes. Specific examples were given of patients who have been adversely affected by bed closures, delays in admission and discharge, the cancellation of elective surgery, outpatient bans and the limitations in Emergency Departments. In particular, examples were given of four patients who had to remain in Emergency Departments on 13 and 14 November 2011 for longer than 24 hours as a result of the industrial action. It was said that these breaches are particularly concerning as, until the industrial action began, Monash Medical Centre Clayton had not had a breach of the 24 hour requirement for over three years. In relation to the ANF exemptions and notification processes, Ms. Chalmers said there was confusion as to how the exemptions would operate and that the processes did not provide a practical means for dealing with the bans or making operational decisions. She said that decisions need to be made quickly and efficiently in an operational setting; otherwise there are risks that patient care is compromised.

[21] Ms. Chalmers was asked about the management of elective surgery in Southern Health and plans in regard to cancellations and rescheduling as a regular part of hospital management and in the course of the current industrial action. She acknowledged that at the present time doctors are still making the clinical part of decisions about cancellations and that to date the situation was being handled adequately without the need to use private hospital space. She also acknowledged that patients were not ‘endangered’ by remaining on trolleys in the acute assessment unit, although she explained that there were potential issues with leaving people on trolleys for long periods, including pressure ulcers and the risk of falls.

[22] Mr. Lilly gave evidence regarding the hospitals and health services of Eastern Health. These provide a range of acute, sub-acute, palliative care, mental health, drug and alcohol, residential care and community health services to more than 700,000 people across the eastern suburbs of Melbourne. Mr. Lilly said that the nature and extent of the industrial action will impact on Eastern Health’s ability to provide quality care in a timely manner.

[23] In his statement, Mr. Lilly sets out the likely effect of the industrial action on patient access to and the provision of clinical care. Although it will affect different patients in different ways (e.g. “some patients require care more urgently than others and some will react better to the cancellation of procedures than others”), Mr. Lilly said that all of those affected will be denied the timely treatment that they need and this will negatively impact on their health and welfare. Examples were given of individual patients affected by the cancellation of elective surgery due to the industrial action and the potential health risk consequences for them. Mr. Lilly also explained the adverse clinical impact of a prolonged delay in emergency for elderly patients. He said that, since the implementation of the industrial action, there have been more 24 hour stays in the Emergency Department, mainly at Maroondah Hospital, than for the whole of the 2010/11 period across Eastern Health (including the Emergency Departments at Box Hill, Angliss and Maroondah hospitals).

[24] Mr. Lilly said there were problems with the ANF process for dealing with concerns about the health, safety or welfare of patients. He said that the fundamental problem was that the ANF bed management committee and review process only deals with individual cases warranting exemption on clinical grounds. This does not alleviate the risks to the safety, health and welfare of the large number of patients who are adversely affected by bed closures and the cancellation of elective surgery. There are also a number of practical problems with the way the process operates. In particular, there is a concern that hospital managers and clinical staff in Emergency Departments need to negotiate with the ANF about the admission of patients to beds and that this will result in delays to treatment with the associated impacts on patient well-being and risks of an adverse event.

[25] In cross examination, Mr. Lilly conceded that the situation with seven patients who were in emergency for over 24 hours had arisen as a result of confusion about the nature and extent of the industrial action and that presently there were no patients waiting for more than 24 hours in the Emergency Department. He acknowledged that there were channels of communication with the ANF to resolve such issues, although he said that the extra layer in the admission process was delaying the correct treatment and the best possible care being provided to people coming to Emergency Departments. In regard to elective surgery Mr. Lilly acknowledged that it was possible for Eastern Health to purchase space in private hospitals during the industrial dispute, although he said that he hadn’t “come across many private hospitals that actually have the capacity to provide the amount of surgery that we’re talking about in terms of the current number of cancellations.” Mr. Lilly expressed his concern that as a result of the industrial action the situation in Emergency Departments would become critical over the next week and would have an adverse impact on emergency health services, including probably a lower response time to triple zero calls for an ambulance to attend to an emergency due to ambulances queuing at Emergency Departments.

[26] Ms. Cooke gave evidence regarding the impact of the industrial action on Northern Health. She explained that Northern Health provides healthcare services to approximately 500,000 people in Melbourne’s middle to outer northern suburbs and in some semi-rural areas. She said that the industrial action will constrain the operational capacity of the public health care system. As the health system is already at or very near maximum capacity, any additional pressure on the system will have a negative impact on both access to treatment and the quality of treatment. She said that the bans will not simply result in delay or inconvenience to patients, but will impact on their health and welfare.

[27] Ms. Cooke provided examples of patients who had been more adversely affected than others as a result of the cancellation of elective surgery. She also referred to the impact of the industrial action on the Emergency Department at Northern Hospital, including the increased likelihood of ambulance bypass and the increased number of patients left waiting on trolleys for more than 24 hours. She referred in particular to two category 2 Triage cases, one suffering from breathing difficulties and the other a possible heart attack victim, who were kept waiting in emergency for in excess of 24 hours as a result of the industrial action.

[28] Ms. Cooke said that the ANF’s exemptions process has caused confusion and meant that the hospital had to negotiate on the clinical conditions of patients with the ANF. In her opinion, the delays involved in the process have had adverse impacts on patient care. She considered that patients presenting at Emergency Departments who are assessed as requiring admission should be admitted at the earliest possible opportunity for their mental welfare and for the purpose of receiving proper treatment.

[29] Ms. Keenan gave evidence regarding the impact of the ANF industrial action on Austin Health. This comprises three campuses - Austin Hospital, Heidelberg Repatriation Hospital and Royal Talbot Rehabilitation Centre - which have approximately 939 inpatient beds. From her experience she said that the nature and extent of the ANF industrial action, coupled with the fact that it is being conducted on a State-wide basis, will mean that considerable pressure will be placed on the provision of medical services. This will, very likely, result in: overcrowding of accident and Emergency Departments; delays to treatment (especially elective surgery); potential risks to patient safety; and, in some cases, prolonged pain and suffering, or physical or mental discomfort.

[30] Ms. Keenan referred to the likely impact of the various bans on the services provided by Austin Health. It was said that the closure of one in three beds will impact heavily on the Emergency Department at the Austin Hospital. It will mean that there are fewer beds into which the hospital might admit patients from the Emergency Department and will have a detrimental impact on the welfare of patients who will need to be kept on temporary trolleys in the Emergency Department. It will also adversely impact on Emergency Department waiting times for new patients, cause over-crowding in waiting rooms and diminish the function of the department. She said that the overcrowding of Emergency Departments can also impact on ambulance services and result in the hospital being placed on “ambulance bypass”.

[31] Ms. Keenan gave the following evidence:

[32] Ms. Keenan also referred to the possible impact on patient health and welfare of the cancellation of elective surgery (e.g. hip replacement surgery for an elderly patient) and the bans on one in three referrals to outpatient clinics and review appointments. She also provided other information about specific patients attending the Austin Emergency Department since the commencement of the ANF’s industrial action and whose treatment has been delayed because of it.

[33] In relation to the ANF exemption processes, Ms. Keenan said that although the ANF representatives were accommodating at a general level about the need for wards to admit “emergency” patients, the practical application had not been smooth and resulted in delays to the admission of those patients into beds. She acknowledged that some of the confusion about the operation of the bans had been overcome and that problems have been able to be sorted out after contact with the ANF. She also acknowledged that using space in private hospitals was a possibility to deal with elective surgery that might be affected by the industrial action.

[34] Mr. Gilbert from the ANF gave a detailed account of the events relating to the negotiations and processes relating to the proposed enterprise agreement to replace the current Nurses (Victorian Public Sector) Multiple Employer Agreement 2004-2007. In particular he referred to the impasse reached in early November in the negotiations on the main issues; the notifications of protected industrial action given by the ANF on 4 and 8 November 2011; and the discussions between the ANF and various employers about establishing consultation processes to deal with the foreshadowed bed closures. Mr. Gilbert explained that the current protected industrial action is significantly different from that taken in past disputes in that:

[35] An explanation was given as to the operation of the ANF processes and examples were given as to instances where the notification procedure was utilised. However Mr. Gilbert believed that employers had chosen not to cooperate with the ANF for the purpose of ameliorating any unintended consequences of the industrial action because this was contrary to their desire to have the industrial action terminated and to procure an arbitrated outcome to the negotiations consistent with the strategy outlined in a leaked Victorian Government Cabinet submission.

[36] Mr. Gilbert referred to the establishment of the ANF local campaign bed management committees at various hospitals to assist with issues that may arise from the industrial action and the operation of these committees. He also gave examples where emergency admissions had been facilitated through the ANF processes. He referred to ways whereby reserved emergency beds are available to receive patients from Emergency Departments and elsewhere and whereby one in three closed beds can be opened to receive patients who require admission because of genuine concerns about their safety, health or welfare. He also explained ways in which the bans on elective surgery might be implemented by cancelling non-urgent operations.

[37] Mr. Gilbert’s statement sets out advice received from ANF organisers at Western Health, the Austin Hospital, Eastern Health and Northern Health, and in North East Victoria regarding the implementation of the industrial action, the operation of the ANF exemption processes and the action taken by the ANF to facilitate the admission of emergency patients. In general it was said that although there might have been some confusion in the wards, all problems had been resolved and all patients received timely and appropriate care and that there had been no endangering of safety, health or welfare as a result of the protected industrial action.

[38] In cross examination, Mr. Gilbert was asked about the history of the negotiations and the issues in contention between the parties. In relation to the protected industrial action, he said that the action might continue for an indefinite time and until agreement was reached. Although the aim of the action was to bring about the closure of one in three operational beds, subject to exemptions, he said that it would be inconceivable that the ANF would actually achieve a closure of one in three beds in the Victorian public health sector. He also referred to the exemptions and proviso in relation to the ANF industrial action so that the health, welfare or safety of the community was not put at risk.

[39] Ms. Cresswell gave evidence about the implementation of the industrial action at the Monash Medical Centre. She said that the action was being implemented safely due to communicative and co-operative relations with the employer and its managers. She explained the work of the bed management committee meetings at Monash Medical Centre and said that these meetings have greatly assisted in ensuring that during the industrial action patients who require clinical care receive that care.

[40] Ms. Wallis also gave evidence regarding the Monash Medical Centre. She explained that as part of her role as an ANF key member she meets with other senior nursing management daily to consider emergency admissions. She said that in making a decision as to whether a patient should be admitted, the ANF local campaign bed management committee has at all times been mindful that patients who need care should be able to receive appropriate care.

[41] Ms. West is an organiser with the ANF with responsibility for Peninsula Health, which includes Frankston and Rosebud Hospitals. She gave evidence regarding the implementation of the industrial action including the bed closures and surgical procedure postponements at Peninsula Health. She said that an expanded local bed management committee has been established at Peninsula Health comprising management and ANF representatives. The committee had met daily since 12 November 2011 to determine which patients require admission in the Emergency Department and to consider surgical lists for the following day. She said that there was always unanimous agreement as to decisions concerning which patients require admission or surgery.

[42] In the course of the proceedings, the ANF requested that a summons be issued to an emergency physician from a major hospital so that he might attend the hearing and give evidence. It was said that the witness could give evidence about the impact on Emergency Departments having designated emergency beds in wards, the significance of the 8-hour to 24-hour wait in emergency, the impact of waiting in emergency on a patient’s care and the experience of the industrial action to date. Although a summons was issued for the attendance of the witness, the ANF later indicated that it did not intend to call him.

Submissions

[43] The VHIA submitted that the 12 November 2011 protected industrial action and its continuation was threatening or would threaten to endanger the life, personal safety or health, or the welfare of part of the population and that an order should be made terminating the action. It was said that the industrial action has been designed to reduce the volume of services provided by employers in the Victorian public health system. Such constraints must inevitably result in fewer people receiving treatment than would otherwise be able to receive treatment or, at least, in treatment being delayed or administered less efficiently. These consequences are adverse in that they “threaten to endanger” and they all pertain directly to the personal health, and potentially the safety, or to the welfare, of those who may be in need of public health care services.

[44] The Government of Victoria also submitted that the protected industrial action was endangering the health, safety and welfare of patients and their families.

[45] The ANF submitted that the protected industrial action was not such that there is or has been any endangerment to the health, welfare or safety of any person. It was said that the industrial action being taken has been refined since previous disputes in Victoria and that the ANF has very carefully crafted the nature of the industrial action to ensure that there is no endangerment in the relevant sense to anyone. In this regard it was said that there is a speedy and efficient way to resolve any issues that may arise. It was also submitted that cancellation of elective surgery and extended stays in emergency are things which happen throughout the State every year and, although they might be undesirable or cause inconvenience, they do not endanger people.

[46] The ANF also argued that there was a plan by the VHIA, in conjunction with the Victorian Government, to bring about the current situation by not bargaining in good faith so that they might achieve the outcome of the termination of protected industrial action and the arbitration of issues relating to nurse-patient ratios. It was said that the VHIA should not be rewarded for its behaviour by an order to terminate the action. In any event, it was submitted by the ANF that an order for suspension rather than termination of the protected industrial action would be appropriate if the requirements of s.424 were found to be satisfied. This would allow the ANF to take into account any finding of the tribunal and to put into place industrial action that did not cause a problem.

[47] The HSU supported the submissions of the ANF.

Consideration

[48] The main issue for consideration in this matter concerns the impact that the protected industrial action being taken and threatened by the ANF and its members is having or is likely to have on the Victorian public health system and the users of the system. Subsection 424(1) requires that FWA must make an order suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable if we are satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population.

[49] It is clear that there must be an appropriate evidential basis to found such a satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v AIRC 1 in considering somewhat similar provisions in the Workplace Relations Act 1996:

[50] We have therefore given careful consideration to all the evidence and submissions presented in the proceedings in reaching our conclusions.

[51] We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s.424(1), including the references to “welfare” of the population and the concept of endangerment. 3 These are commonly used words and expressions which are widely understood in the community and which should be given their ordinary meaning. Conduct that puts a person’s physical or mental state at risk of material detriment - or that materially hinders or prevents improvement in a person’s poor physical or mental state - may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger.

[52] Although the industrial action by the ANF and its members has only been taken over a few days, there is substantial evidence about the serious impact that it has had on public health services and on the safety, health and welfare of some patients. There is also evidence as to the likely effect that the industrial action will have on patient safety, health and welfare if it is to continue into the future. In particular, we heard evidence from four senior administrators of major health services in Victoria which cover a very significant part of the Victorian population. They gave evidence regarding the consequences that the bed closures have had and will continue to have on hospital services and on patients. It was said that as a result of the industrial action patient care is being compromised with patient safety, health or welfare being placed at risk. They referred to the potential for Emergency Departments to become blocked and overcrowded, for more patients having to remain in emergency for longer periods awaiting transfer to wards, and for more hospitals to be placed on ambulance bypass. The evidence was to the effect that these problems will become more acute as the industrial action continues to be implemented within the system and with the possibility of one in three hospital beds being closed. It was said that the public health system is already under enormous pressure with hospitals operating at near capacity. The effect of the industrial action will be to add additional pressures. It was also explained that the cancellation of scheduled elective surgery, with patients not necessarily being given another date for surgery, will also have a significant detrimental impact on patients. The surgery might be cancelled at a day’s notice after patients have been waiting for months for the surgery and have undertaken much preparatory work.

[53] Evidence was also given of specific cases of individual patients who have suffered adverse consequences because of the impact of the industrial action. These included cases where patients have had to wait in excess of 24 hours in Emergency Departments, where treatment in Emergency Departments has been delayed due to overcrowding and where “category 1” and “category 2” surgical procedures have been cancelled for patients with pain, physical incapacity and/or undiagnosed conditions.

[54] In considering the impact of the protected industrial action across the Victorian public health system, we are mindful of the fact that the impact will be different in the case of individual health services and patients. Some hospitals might be able to cope with the industrial action more effectively than others. Some patients might be more adversely affected than others. For some patients the adverse impact may be minimal, whilst for others the impact may be more serious.

[55] We also recognise that there are delays and problems which occur in the public health system on a regular basis which result in, for example, prolonged stays for patients in Emergency Departments and the cancellation of elective surgery. It is part of the normal function of hospital management to deal with such problems and challenges so as to seek to minimise their impact. However the protected industrial action being taken by the ANF and its members is likely to result in an increase in such delays and problems and to exacerbate the difficulties for hospital management in dealing with them. The evidence before us is that in such circumstances the increased likelihood of such occurrences will have the effect of putting the welfare and safety of patients at risk and jeopardising their health. The protected industrial action will add extra pressure to a system already under pressure.

[56] Overall, we consider that the impact of the protected industrial action has been to adversely affect the quality and timeliness of the treatment that can be provided to patients, especially those in Emergency Departments and those requiring surgical procedures. In our view, the impact is of such a nature as to cause more than just inconvenience to these people but to endanger their safety or health or their welfare. Furthermore we consider that this adverse impact on the users of the Victorian public health system will be aggravated as the industrial action by the ANF and its members continues to be implemented with the aim of reducing the capacity of the system through bed closures, cancellations of operating sessions and other bans.

[57] In reaching these conclusions, we note that considerable efforts are being made by hospitals to minimise the adverse effects of the industrial action on their operations and, in particular, on patient treatment and care. However given the size and wide coverage of the public health system in Victoria, and the likely cumulative effect of the industrial action in reducing over time the capacity of the system, there is a limit to what can be achieved through such measures. There is also only limited capacity to use the resources of private hospitals. We have taken into account the expressed intention of the ANF that the industrial action will be implemented in such a way as not to endanger anyone’s life, personal safety or health, or their welfare. However the evidence before us as to the actual and likely consequences of the industrial action across the public health system and for those using the system, has demonstrated that the action being taken is endangering the safety, health or welfare of patients. Further, we are not persuaded that the ANF’s exemption and notification processes are working in practice. The evidence from the hospital administrators was that there has been confusion about the processes and that there have been at least delays in the admission or transfer of patients due to the processes with relevant adverse consequences. There is also concern that the processes involve negotiation as to the provision of beds to particular patients, and the making of judgments about patient care other than by clinical staff. The ANF witnesses conceded that there have been some problems with the processes, although they said that the initial problems are being addressed and that the consultative processes are working well in some health services.

[58] In all the circumstances, we are satisfied on the basis of the evidence that the protected industrial action being engaged in by the ANF and its members is threatening or would threaten to endanger the personal safety or health, or the welfare, of people in need of public health care services in Victoria. Accordingly an order should be made under s.424 of the Act.

[59] The VHIA and the Victorian Government sought an order terminating the protected industrial action. The ANF and the HSU submitted that an order for the suspension of the industrial action would be more appropriate in the circumstances. Either order would bring to an end the right to take protected industrial action. A termination order may lead to FWA making a workplace determination under Division 3 of Part 2-5 of the Act. A suspension order may allow protected industrial action to be resumed after the period of suspension, subject to relevant notice requirements being observed (see ss.429-430).

[60] In considering whether a termination order or a suspension order should be made we have had particular regard to the stage reached in the negotiations between the parties and to the recently commenced conciliation processes. We note that the negotiations between the parties for the new agreement only commenced in mid-September 2011 and that the s.240 dispute resolution processes before a member of FWA began on 8 November. Although there will undoubtedly be a range of difficult issues to be addressed by the parties, we consider that the negotiations are still at a relatively early stage. We have therefore sought to provide a basis for the parties to continue with the negotiations in a way which is consistent with the bargaining scheme of the Act but without the continued damaging effects of the industrial action. An order suspending the protected industrial action for a period of 90 days will bring to an end the protected industrial action and will allow the discussions and negotiations between the parties to proceed, with the assistance of FWA. It will also allow the parties to focus their efforts on seeking to resolve the differences between them as to the new agreement rather than dealing with the problems associated with the bans and other industrial action. Further, it will provide an opportunity for the ANF to consider ways of giving effect to its stated intention of ensuring that any protected industrial action taken in the course of bargaining does not endanger anyone’s safety, health or welfare. The VHIA also sought that any suspension of the protected industrial action be for at least three months.

[61] For all the above reasons we decided to make the order under s.424 of the Act suspending for a period of 90 days the protected industrial action being taken by the ANF and its members.

SENIOR DEPUTY PRESIDENT

Appearances:

F Parry of Senior Counsel and J Snaden of Counsel with B Avallone and K Lehane for the Victorian Hospitals’ Industrial Association.

J Forbes of Counsel for the Minister for Public Sector Industrial Relations for the State of Victoria.

W Friend of Senior Counsel and E White of Counsel with P Gardner and N White for the Australian Nursing Federation.

S Bonavia for the Health Services Union.

T Clarke for the Australian Council of Trade Unions.

Hearing details:

2011.

Melbourne:

November 15, 16.

 1   (2000) 203 CLR 194

 2   Ibid at 208 per Gleeson CJ, Gaudron and Hayne JJ.

 3   For example, in relation to “welfare of the population”: see Coal & Allied Operations v CFMEU (1998) 80 IR 14, State of Victoria v HSUA AIRC Print L9810; in relation to “endanger”: see Metropolitan Ambulance Service v LHMU PR950276, St. John Ambulance (NT) inc. v United Voice [2011] FWA 4782, Tyco Australia Pty Limited T/A Wormald v CEPU [2011] FWAFB 1598.

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