Canberra Hospital v Australian Nursing Federation

REASONS FOR JUDGMENT 1 I have already made interim Orders in this matter in favour of the Applicant, the Canberra Hospital. Those Orders enjoin the Respondent, the Australian Nursing Federation ("the Federation"), from engaging or to continuing to engage in specified strike activity until 7.00 am on Friday 19 October 2001. These are my reasons for that Order. 2 The Application was filed on 18 October 2001 by the Canberra Hospital ("the Hospital") seeking final and interlocutory injunctions against the Federation in respect of the alleged contravention of an Order made by Commissioner Deegan on 17 October 2001 in proceedings before the Australian Industrial Relations Commission and (ii) pursuant to s 170NG of the Workplace Relations Act 1996 (Cth) ("the Act") in respect of actual and apprehended contraventions of s 170MN of the Act. 3 By way of background to this proceeding I should indicate that on 12 April 2000 parties including the Hospital and the Federation entered into a Certified Agreement called "the Canberra Hospital Nursing Staff Agreement 1999-2001", the nominal expiry date of which was 30 November 2001. The burden of the oral evidence given in support of the proceedings (that evidence being given by an industrial relations consultant of the hospital and by a senior employee of the Hospital who was the principal negotiator of the enterprise bargaining agreement) was to the following effect. Since June of this year the parties have commenced and have engaged in negotiations for a further agreement. The Federation early made known the issues it wished to raise in that negotiation and these were discussed from time to time. In late August or early September a decision was made, apparently by the government of the Australian Capital Territory, as to the financial provision that would be made by way of wages offered in these negotiations. On 14 September the Federation held a meeting at which it was resolved that a 24 hour strike would be called if certain demands made by the Federation were not met. This started a process of applications to the Industrial Relations Commission in September and October which, though not resulting in Orders prohibiting strike action, nonetheless were actions related to the negotiations. I am informed that on 5 October the Federation urged its members to engage in both ward action and hospital-wide action. On 16 October 2001 the Federation members at the hospital carried a resolution at a meeting in the following terms: "Engage in a 24 hour strike from 7.00 am on Thursday 18th October 2001 to 7.00 am Friday 19th October 2001, which gives affect [sic] to the resolution carried by the members on 14 September 2001 which was as follows: That this members meeting of ANF resolves to take action after the next negotiation meeting to achieve an outcome in the nursing crisis. We resolve to strike for 24 hours because of the incompetence of the ACT Government and Management to provide a safe working environment which impacts on TCH nurses and patients of this hospital." Emphasis in original. 4 That resolution resulted in an Application being made to the Industrial Relations Commission on the 17 October by the Hospital. It, in turn, resulted in Orders being made that are in evidence before me. For reasons I will later give the injunctive relief sought under s 127(6) of the Workplace Relations Act in respect of actual or apprehended contraventions of the Order have not been prosecuted. Of present relevance a term of the Order that was made required the Secretary of the Federation, Ms Duff, to cause to have posted on noticeboards, readily accessible to all nurses employed at the Canberra Hospital, notices under the letterhead of the Federation, stating that the 24 hour stoppage was not to occur. Those notices were to be posted no later than 9.00pm on 17 October 2001. There was no compliance with that Order, Ms Duff taking an alternative course to which I will later make reference. A meeting of members of the Federation was held at the Canberra Hospital at 7.00am on 18 October 2001. Ms Duff reported to that meeting and made a recommendation that the strike action immediately cease. Nonetheless the meeting resolved to take the action, the result of which has been, on the evidence, that some number of employees have not reported for work at the hospital. The incidence of this varied between different wards in the hospital but its pressure was most significantly felt in the areas of intensive, coronary and emergency care. The evidence of Ms Wunsch was that the problems that could be experienced in light of this non-reporting could be severe particularly in those areas which could even become non-viable if a stoppage of more than 24 hours was made. Ms Wunsch also indicated that she and other nursing managers hand delivered to employees notices informing them of the Order after hours. 5 The Federation Secretary, Ms Duff, gave evidence. She indicated that with the hearing not finishing until after 4.30pm she found she was unable to comply with the direction that had been given to her. She wished to seek legal advice. And though she could obtain access to the premises of the Federation, it was after hours by the time she got there. It would in her view have been impossible for her to have complied with the Order by causing the notices to be posted, and accordingly she decided that the best way to communicate was to the members at the 7.00am meeting that had already been called, knowing that those members had in all probability been provided with copies of the Order in any event. At that meeting it is her evidence that she recommended that strike action immediately cease. 6 Counsel for the hospital questioned Ms Duff's willingness to comply with the Order of the Commission or for that matter with Orders made by the Commission in general. She disclaimed any such attitude towards the Commission and its Orders. Nonetheless I anticipate that this will be an issue in the subsequent proceedings before me, though I should stress that on the material before me I cannot and do not make any finding on this matter. The Order made by the Commission was one which purported to bind the Federation and members of the Federation employed at the Canberra Hospital in designated classifications. The proceeding before me however is one only brought against the Federation itself. Because of difficulties I indicated with the terms of this Order the Applicant declined further to prosecute it in this Application for interim relief but rather made its claim under s 170NG in respect of s 170MN of the Act. That section insofar as presently relevant provides: "(1) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action. (2) For the purposes of subsection (1), the following are covered by this subsection: … (b) an organisation of employees that is bound by the agreement or award." 7 In consequence of the terms of s 4(8) of the Act, it clearly is the case that an industrial organisation such as the Federation can engage in industrial action: see Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2001] FCA 1397. The question that arises in this proceeding is whether the Federation was directly or indirectly a party to, or concerned in, industrial action, the relevant industrial action for present purposes being that specified in the s 4 definition of "industrial action" in sub-paragraphs (b) and or (d)(ii). For the Hospital to make out its case in this application it will need to show that that industrial action was for the purpose proscribed by s 170MN(1). 8 In light of the course of action taken by the Federation and its members, and in light of, though notwithstanding the less than explicit statement of purpose in, the 16 October resolution to which I have earlier referred, Counsel for the Federation conceded properly that it was open to me on the evidence to infer that the 24 hour strike was one taken for the purposes of supporting or advancing claims against the hospital in respect of the employment of persons whose employment was subject to the Certified Agreement to which I have referred. The issue on which the parties disagree is whether it was open to me to conclude there was a serious question to be tried as to whether the Federation itself was engaged in the action constituted by the 24 hour strike. 9 It was conceded on behalf of the Federation that if the matter was viewed simply from the time at which the resolution for the strike was passed it properly could be said that then the Federation was so engaged, but the Federation goes on to suggest it disassociated itself from that action when putting into effect the direction to Ms Duff in the manner thought best to achieve its purpose by recommending to members at the meeting on 18 October that the strike action cease. In contrast the Hospital points to Ms Duff's non-compliance with the Order and suggests that in light of all of the past actions of the Federation in September/October and the passing of the resolution, I should be satisfied sufficiently for present purposes that the Federation continued to be engaged in the relevant industrial action even after the making of the Order and if such was the case it is appropriate that I grant interim injunctive relief. 10 For my own part I am prepared to infer that the Federation has been sufficiently engaged in industrial action for s 170MN purposes and has sufficiently participated in the 24 hour strike in furtherance thereof, as to justify the award of interim injunctive relief subject to discretionary considerations. 11 Insofar as any issue of balance of convenience is concerned, it seems to me to favour entirely the grant of an injunction on the evidence before me. It is clearly the case on that evidence that the prospect of misfortune for patients in the hospital could be magnified by the action taken. In contrast the Federation did not point to any hardship or inconvenience it was likely to suffer should the Order be made. In the circumstances I was prepared to make an Order enjoining the Federation's engaging or continuing to engage in strike action for the s 170MN purpose until 7.00am on 19 October 2001. That Order as I emphasised at the time was an Order against the Federation, not one against the members of the Federation. This was well understood by Counsel for the Hospital. I am, as the making of my Orders has suggested, satisfied that the case is a proper one for the award of interim relief and I have ordered accordingly subject to the giving of the usual undertaking as to damages. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.