Victorian Hospitals' Industrial Association v Australian Nursing Federation

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 175 of 2012

BETWEEN: VICTORIAN HOSPITALS' INDUSTRIAL ASSOCIATION

JUDGE: TRACEY J DATE: 28 FEBRUARY 2012 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 22 February 2012 a mass meeting of members of the Australian Nursing Federation's Victorian Branch resolved that strike action would commence if the Victorian Government and the Victorian Hospitals' Industrial Association ("the VHIA") did not consent to the settlement by arbitration of outstanding issues which had arisen in the context of the negotiation of an industrial agreement. 2 The Government and the VHIA did not agree to the proposal. 3 Rolling stoppages of work commenced on 24 February 2012 at the Royal Melbourne, Dandenong and Western Hospitals. 4 On 24 February 2012 the VHIA applied to Fair Work Australia ("FWA") for an order to be made under s 418 of the Fair Work Act 2009 (Cth) ("the Act"). That section provides that "FWA must make an order that … industrial action stop, not occur or not be organised" if it appears that such action is being taken or may be taken and it is not protected industrial action. The VHIA led evidence about the work stoppages which had taken place or were scheduled to take place at the three hospitals. The Australian Nursing Federation ("the ANF") was represented at the hearing. It did not call evidence. It did not submit that the stoppages constituted protected industrial action. Commissioner Jones ordered that the industrial action stop and not be organised. She also made various orders requiring that her principal order should be drawn to the attention of members of the ANF. 5 In the evening of 24 February 2012 the Secretary of the Victorian Branch of the ANF published a statement in which she said (among other things): "The Baillieu Government's position … is why we simply cannot comply with that Order and must regrettably continue with our campaign despite the orders of Fair Work Australia. … These daily stoppages will continue indefinitely, and additional hospitals will be joined to the action on each day that the dispute remains unresolved." 6 What the Branch Secretary foreshadowed has come to pass. Over successive days nurses in a large number of other Victorian hospitals have ceased work for four hour periods in an ongoing series of rolling stoppages. 7 On 27 February 2012 the VHIA commenced a proceeding in the Court in which it seeks declarations, an injunction and the imposition of pecuniary penalties. An interlocutory injunction was sought to restrain the ANF from continuing to contravene the order made by Commissioner Jones. 8 By s 421(1) of the Act a person to whom an order under s 418 is directed must not contravene a term of that order. A person who does so is liable to a civil penalty. Section 421(3) provides that: "The Federal Court … may grant an injunction, under this subsection, on such terms as the court considers appropriate if: (a) a person referred to in column 2 of item 15 of the table in subsection 539(2) has applied for the injunction; and (b) the court is satisfied that another person to whom the order applies has contravened, or proposes to contravene, a term of the order." 9 There is no dispute that the VHIA has standing for the purposes of s 421(3) of the Act or that unprotected industrial action of the kind prohibited by Commissioner Jones' order is continuing. Nor is it disputed that the industrial action is being organised and co-ordinated by officials and members of the ANF. 10 The principles which govern the granting of interlocutory injunctions are well known and need not be restated: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-2. 11 The VHIA has established a prima facie case in the sense that, on the evidence presently before the Court, there is a probability that it will be held entitled at trial to some, if not all of, the relief which it seeks. The ANF did not seek to suggest otherwise. 12 The ANF did, however, submit that the balance of convenience favoured a refusal of injunctive relief. 13 The VHIA presented evidence that the rolling stoppages were leading to the cancellation of elective surgery at both metropolitan and country hospitals. Scores of patients have been affected. These include what are known as category one patients who have an urgent need of surgery. Among these patients are included those who require procedures to determine whether or not they are suffering from cancer. Surgery has also been cancelled for category two and category three patients. While such patients have a less urgent need for surgery, that surgery is necessary, in some cases, to relieve chronic pain. Patients requiring hip replacements, for example, are placed in category three. 14 The ANF sought to undermine the strength of the VHIA's balance of convenience argument by pointing to statistics which showed that the cancellation of elective surgery was a frequent occurrence in the Victorian hospital system. The reasons for such cancellations were not explained although it was suggested that some may be attributed to the lack of financial resources available to hospitals. 15 The VHIA has established that a large number of patients have been, and, in the absence of the orders sought, will be deprived of the opportunity of necessary surgery as a direct result of unlawful industrial action on the part of ANF members. They would not have been so incommoded had the ANF and its members complied with Commissioner Jones' order. Their predicament was avoidable. The fact that other patients at other times may have had surgery cancelled for other reasons does not, in my opinion, undermine the strength of the VHIA's argument on the balance of convenience point. 16 The ANF sought to rely on a wider proposition. It was that injunctions are a discretionary remedy and that, in an industrial context, attention should not be confined to a strict view of the legal rights and obligations of the respective parties. 17 The ANF outlined the history of negotiations between it and the VHIA for a new industrial agreement which was to apply to nurses in the Victorian public health system. Those negotiations commenced in mid-2011. They were followed by a series of 18 conciliation conferences which were suspended on 3 February 2012 because progress was no longer being made. At least since 15 November 2011 the ANF had sought the VHIA's agreement to a proposal under which outstanding issues would be resolved by arbitration. That consent arbitration would be conducted by a senior member of FWA. The VHIA rejected the proposal. 18 The ANF also complained that the VHIA had not responded to its repeated requests for employers to furnish it with a log of claims. 19 A central area of dispute relates to the prescription of nurse/patient ratios. The ANF asserted that the VHIA had, in public statements, misrepresented its (the VHIA's) position on such ratios. The ANF considers that the provisions providing for such ratios have at least three inalienable elements. These include requirements that the ratios be maintained at all times and that only registered nurses be counted when the ratios are being calculated. The VHIA has made public statements that it proposes that any agreement should retain the ratios but that provision should be made for them to be varied from time to time to take account of the particular needs of particular hospitals in the course of the treatment of patients and that, in some instances, less qualified nursing assistants might be counted when determining the number of staff required to meet the ratios. Such proposals, the ANF claims, are misleading because they undermine the present inviolability of the ratio requirement. 20 These circumstances, it was submitted, would render it unjust for injunctive orders of the kind being sought by the VHIA to be made. 21 The ANF had earlier rehearsed its complaints about the conduct of the VHIA in the course of negotiations and conciliation in the context of an application, made by it under s 229 of the Act. It was alleged that the VHIA had not satisfied the good faith bargaining requirements of s 228 of the Act in the course of its dealings with the ANF. The application was rejected by Commissioner Jones: see Australian Nursing Federation v Victorian Hospitals' Industrial Association [2012] FWA 285. Specifically, the Commissioner rejected ANF claims that the VHIA had not responded to proposals advanced by the ANF in the course of negotiations or that the VHIA was obliged to provide a management log of claims. 22 Even if it be assumed, in the ANF's favour, that the legal position of the parties should weigh less heavily when injunctions are sought in the context of industrial disputation, the ANF's complaints about the bargaining conduct of the VHIA have been considered and rejected by the specialist tribunal to which the Act commits consideration of these matters: cf Transfield Construction Pty Ltd v The Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 at [31]-[35]. The Court should accord appropriate weight to the findings of a Commissioner who has been actively involved in the oversight of the conduct of the parties. 23 Insofar as the public statements of the VHIA relating to nurse/patient ratios are concerned, I consider that the complaints made by the ANF amount to no more than a semantic argument. There is no doubt that the VHIA, in its public statements, has made it clear that it seeks qualifications to the absolute operation of nurse/patient ratios, and that it wishes to have such modifications provided for in the agreement which is being presently negotiated. Its statements have not been misleading. It is not inconsistent with its stated position, in my view, for the VHIA to assert that it proposes that ratios should be retained. 24 Upon becoming aware of Commissioner's Jones' orders under s 418 of the Act, the ANF made a deliberate and conscious decision to ignore those orders. The unprotected industrial action of its members was to continue regardless of its impact on patients awaiting surgery. The action was to continue until such time as the VHIA acceded to the demand that it consent to arbitration of the outstanding issues. 25 As I observed during argument there is an incongruity in the ANF's position. It is seeking arbitral orders which, if made, will bind the VHIA. It will expect the VHIA and its members to comply with the terms fixed by the arbitrator. In order to achieve this end, however, the ANF reserves to itself the right to ignore the binding orders of another member of FWA. 26 In my view, the balance of convenience and discretionary considerations favour the granting of the injunctive orders sought by the VHIA. 27 The VHIA submitted that, if the Court were minded to make injunctive orders, ancillary orders should be made in order to ensure that the terms of the Court's order and that of Commissioner Jones were brought to the attention of ANF members. I agree that it is important that members of the ANF and, particularly, those involved in or likely to become involved in rolling stoppages, should be made aware of the Court's orders. 28 The ancillary orders proposed have been modelled on those made in other similar cases: see Transfield Construction; McDermott Industries (Aust) Pty Ltd v Australian Workers' Union (P) WAD 41/2008 per McKerracher J. 29 The evidence discloses that the ANF has communicated with its members about the rolling stoppages using social networking sites and websites. 30 The ancillary orders sought may reasonably be expected to provide the necessary notice to members. 31 The principal proceeding will be adjourned for directions on 2 March 2012 at 9:30 am. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.