T13041
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister administering the State Service Act 2000 and Australian Nursing Federation Tasmanian Branch
Industrial dispute - application for orders - work bans and limitations - apprehended bias REASONS FOR DECISION [1] This is an application by the Minister Administering the State Service Act 2000 (the Minister) which seeks the Commission to issue orders pursuant to s.31 of the Industrial Relations Act 1984 (the Act) in the following terms: "(i) That appropriate directions from the Commission pursuant to s.31 of the Act be given to both (sic) the Australian Nursing Federation (ANF) that all bans and limitations be lifted forthwith and work is to be performed as normal. (ii) That appropriate direction from the Commission pursuant to s.31 of the Act be given to the Minister, ANF and the Health Services Union of Australia (HSUA) that the negotiations concerning the proposed industrial agreement resume and continue in good faith. (iii) That during the period of the negotiations work is to be performed by members of the ANF and the HSUA normally and work bans and limitations are not be re-introduced. (iv) That the negotiations are to be conducted under the auspices of the Tasmanian Industrial Commission. (v) When an agreement is reached it will be registered in accordance with s.56 of the Act." [2] An extempore decision was issued following the hearing of the application. The dispute between the parties was finally resolved and the agreement between the Minister, the ANF and HSUA, was filed with the Commission on 21 December, 2007 and was registered by the Commission on 4 January, 2008. [T13071 of 2007]. I now provide my reasons for decision which includes a brief history of the dispute. Background [3] The application for orders to be issued followed a lengthy period of unsuccessful negotiation for a new bargaining agreement between the parties. The ANF and the HSUA placed bans and limitations on the performance of work which, it was submitted by the Minister, created operational difficulties in the public health system and inconvenience to patients. [4] In early November, 2007, the Commission, as constituted, offered to chair conciliation conferences between the parties in the role of a private conciliator as no application was before the Commission. This offer was welcomed by the parties and private discussions took place on a number of occasions. [5] The major obstacle to any progress in negotiations was the continuing industrial action. [6] The ANF and the HSUA were requested to direct their efforts to having the bans and limitations removed to allow good faith bargaining to continue. The HSUA removed all bans and limitations for a period of two weeks and the ANF members agreed to remove their bans and limitations for a period of 48 hours. [7] The Minister expressed the view that 48 hours was not sufficient time for the parties to negotiate the issues involved. Likewise it was submitted that 48 hours was not a long enough period to allow the hospitals to make any useful arrangements. [8] Discussions in which the Commission has been involved focussed mostly on the removal of the bans and limitations and very little time was spent addressing the merit of the claims made in respect to a new bargaining agreement. The Minister made it abundantly clear that no revised offer would be put to the ANF and the HSUA representatives whilst the bans were in place. The Minister said that it was not good faith bargaining to expect offers to be made whilst industrial action continued and sought that the ANF at least lift bans for the same two week period as the HSUA. Much of the time in conference was then spent looking for a position which the ANF could put to its members to allow negotiations to continue on the proviso that the bans be lifted, if only for the two week period. The ANF representatives would not take any proposal back to the membership which did not include an improved offer. The ANF stated it was prepared to continue negotiations however this offer seemed to ignore the consistently stated position of the Minister that the lifting of bans for 48 hours was insufficient time and whilst that position remained no negotiations would take place. The Minister said negotiations could continue only if the bans were lifted for the two week period. The ANF refused to put the Minister's position to members. As the parties had reached an impasse this application was then filed by the Minister on 12 November, 2007. [9] The application was made after the scheduled closing time of the Registry, nevertheless it was registered and the parties provided with copies. The ANF sought, and was granted, an adjournment to seek advice and the hearing was set down for telephone or video conference at 1.30pm the following day. [10] The application by the Minister for orders has since been withdrawn. Hearing 13 November, 2007 (by video conference, the Commission from Sydney and counsel for ANF from Melbourne) [11] A threshold application was made by Counsel representing the ANF that the Commission, as constituted, should step aside from any further proceedings on the basis of a perception of apprehended bias. This claim it seems was based on the ANF view of matters being discussed and comments made by the Commission in private conference when the Commission was acting as a private conciliator. The ANF alleged that those comments could lead to a perception of apprehended bias and therefore the ANF would not be treated fairly in any decision. Counsel briefed by the ANF sought an adjournment of the matter to allow a `face to face' hearing of its application. To agree to the adjournment request would have resulted in the matter having to be relisted the following week when all the parties could be available in Hobart. The adjournment application was rejected. Counsel then discussed the various authorities in respect of such applications and a sworn statement was provided by Caroline Saint, an industrial officer with the ANF in Tasmania, which purported to provide a chronology of events and comments made during the conference. Sworn evidence was also provided by Tim Jacobson, the Assistant State Secretary of the HSUA, Tasmania, No1 Branch, who disagreed with the allegations raised by the ANF stating that comments made by the Commission were related to proposals put to the parties during robust negotiations. [12] The Commission, at the time of the hearing, rejected the ANF claims of apprehended bias and continues to reject those claims. [13] Applications for a tribunal member to step aside on the basis of a perception of apprehended bias are not new, they are rare but are in many cases the last refuge of an applicant pursuing a claim of little or no merit in an attempt to have that application heard by a particular tribunal member who, in the eyes of the applicant, may provide a more favourable outcome. In this matter the claims by the ANF and the HSUA were not without merit. [14] The ANF has, in my view, seriously misrepresented the context of matters being discussed at the conference. Those comments, taken out of context, have been mischievously construed to suit the purpose of the ANF application. [15] The recollection and sworn evidence of Ms Saint was inconsistent with the sworn evidence of Mr Jacobson which was, in my view, more representative of the intent of the discussions which took place in the conciliation conference. [16] Mr Ogle, representing the Minister, submitted from the bar table that "there would be people who would have a different view of what happened, but we could argue that all day about who said what, when, in what chronological order, because - and I think it is important, because I have a different view of the order that events occurred."1 [17] The Commission, sitting as a private conciliator, was attempting to find a position which could be put to ANF members which would allow all bans to be lifted for a period of two weeks so that negotiations could continue. There were a number of proposals discussed. One of those proposals did consider orders being issued and whether that would assist the ANF to get members to lift the bans. Despite the consistent position put by the Minister that negotiations would only proceed if the bans were lifted for at least the two week period, the ANF was not prepared to put anything other than an improved offer to its members. Accordingly the application by the Minister was listed for hearing. [18] The following decision in respect to the application by the ANF that the Commission, as constituted, disqualify itself from further hearing on the grounds of an apprehension of bias, was given ex tempore on 13 November, 2007:
[19] I again reject the application made by the ANF. The application was disingenuous and deliberately misrepresented the discussions which occurred in the conference. The evidence and submissions of the other parties present at the conference appear to be at odds with the evidence of Ms Saint from the ANF. Likewise my own recollection differs to that of Ms Saint.
P L Leary Appearances: Date and place of hearing: |