s.170MW suspension or termination of bargaining periods

s.127(2) application to stop or prevent industrial action

Minister for Health in his capacity as the South West Health Board

Minister for Health in his capacity as the WA Country Health Service

Minister for Health in his capacity as the Metropolitan Health Service

[1] I have given consideration as to whether I should exclude myself from these proceedings on grounds of an apprehension of bias.

[2] My consideration arises from my involvement in proceedings involving the parties concerned in the matters before me now. The involvement of the Commission was firstly in conciliation proceedings in related applications and secondly in determination of applications by the Minister for Health in his various capacities (the Minister) to terminate bargaining periods.

[3] The involvement in conciliation proceedings arose out of a request by the Minister for this Commission to conciliate in an effort to get the parties themselves to reach an agreement. The Commission was unable to get the parties to reach an agreement.

[4] My role in conciliating was to "do everything that appears to the member to be right and proper to assist the parties to agree on terms for the prevention or settlement of the industrial dispute" [s.102(1)]. That function was carried out, albeit without a successful outcome, and there has been no assertion, nor in my view can it be asserted that it was not carried out in accordance with the requirements of the Act in the manner the Commission is required to by the Act [s.110(2)(c)].

[5] There is also no assertion, nor can there be, that in the carrying out of conciliation function that I ventured into territory regarding the exercising of the rights of either of the parties to take industrial action in support of their positions or the effect that any industrial action may have either on the conciliation or otherwise.

[6] Arising out of those conciliation proceedings I held a hearing to consider whether I should order a secret ballot to ascertain the views of all nurses intended to be covered by an agreement or alternatively only those nurses who were members of the Australian Nursing Federation (ANF) that were intended to be covered by the agreement. In deciding on the former proposition it was necessary to consider whether industrial action "was being taken or the taking of industrial action is threatened, impending or probable."

[7] I concluded that industrial action was not being taken and nor was it threatened, impending or probable. I do not consider that the performance of my functions in those proceedings gives rise to the potential for any apprehension of bias regarding the matters now before me.

[8] I therefore do not consider that any fair-minded person could hold a view or have a perception, arising from my involvement in conciliation regarding a proposed agreement, that I hold a bias regarding the issues that now require consideration or against either of the parties. The issues for consideration here, namely whether industrial action is or will be taken and the effect of that industrial action, were simply not at issue in conciliation and received no attention.

[9] The other proceedings with which I was involved were those relating to the Minister's applications for termination of bargaining periods.

[10] Those applications were pursued by the Minister on the basis of two propositions; firstly that the ANF had not genuinely tried and was not genuinely trying to reach agreement, and secondly that industrial action was being taken that threatened to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.

[11] I found that the ANF was not genuinely trying to reach agreement. The orders resulting from that finding are under appeal. I also found that industrial action had been taken. There are elements of that finding that I understand are under appeal, but only insofar as that finding relates to the involvement of particular employees pursuant to specific bargaining periods. I did not however find that industrial action was being taken and the refusal to issue orders as a result of that finding is not under appeal. As far as I am aware the ANF has no quarrel with that finding.

[12] I also found that the industrial action that had been taken when it occurred did endanger the life, the personal safety or health, or the welfare, of the population or of part of it. Given the nature of the case before me in those proceedings I would infer that the ANF does not agree with that finding but as I did not issue any orders arising from the finding it was not something that there was any need for the ANF to contest on appeal.

[13] The finding I made related to the effects from the industrial action that had occurred. If industrial action is now planned, which press and media reports seem to indicate, I am not aware of the nature of that action, who is participating or expected to participate in that action, the effect of that action, nor any contingencies or arrangements to minimise the impact of that action. If any planned industrial action is of the same nature and has the same effect as the previous industrial action then it is quite possible I will reach the same conclusion as I did previously.

[14] However it is not an unusual circumstance that I deal with actual or proposed industrial action involving the same employer and the same employees for the same underlying reasons, but regarding different episodes of industrial action, often with relatively short intervals between those actions. Indeed I deal with numerous applications made pursuant to s.127 of the Act asserting that industrial action is happening, impending or probable. Many of the s.127 applications deal with different incidents with the same employees and the same employers. They are each dealt with according to their merits.

[15] In my view a fair-minded and reasonable person would hold a view and perception that notwithstanding I have made findings and orders involving the same employer and the same employees, sometimes involving the same underlying issues, that each application would be and is dealt with fairly and impartially according to the circumstances and facts regarding the specific application that is before me.

[16] Moreover in the matters before me here I am dealing with whether industrial action is being taken or is happening or is threatened, impending or probable where I have not previously made any orders at all relating to industrial action. The matters before me now are those concerning whether industrial action is being taken and the consequences flowing from that industrial action.

[17] Should I find that industrial action is being taken, or is happening or that it is impending, threatened or probable, and that the action will endanger the life, the personal safety or health, or the welfare, of the population or of part of it, as part of the exercise of my discretion as to whether I issue an order or not the previous behaviour of the parties sometimes would be a relevant consideration. In that context the issues Mr Hooker for the ANF raises could have the potential to give rise to a possible reasonable apprehension of bias. However that element would only give rise to that potential if it is likely that conduct and behaviour of the parties in their negotiations will be an element of my deliberations and considerations. I do not consider that it will be. The essential elements of these matters is not what parties have done or not done but what they intend to do which may put the public at risk. Should previous behaviour that was the subject of conciliation become an element in the proceedings I will then give further consideration as to whether I should exclude myself. It is important to recognise that the primary interests in the matters currently before me are those of the public.

[18] Whilst it was not raised by either of the parties, a further consideration I have made, and I consider am obliged to make is whether intervention by the Commission during a period immediately prior to the election for the Government of the State of Western Australia could carry some perception of unnecessary or unwarranted involvement in the political arena in some partisan way. I do not think a fair-minded person would hold such a view but rather would expect that the Commission perform its functions where there is a possibility of industrial action occurring which will endanger the life, the personal safety or health, or the welfare, of the population or of part of it to try and prevent such a possibility happening.

[19] I have therefore decided that I will not exclude myself from these matters but rather will proceed to hear and determine them.

[20] Matters of this nature are sensitive and I have attempted to deal with the issue as objectively as possible. I consider it was essential that it the issue be raised to avoid there be any apprehension that the matter did not receive transparent and fulsome consideration.

R. Andretich, State Solicitor's Office, for the Minister.

R. Hooker of counsel for the Australian Nursing Federation.

Printed by authority of the Commonwealth Government Printer