The Full Bench found that the Australian Nursing Federation had contravened the Commission’s orders made on 18 and 23 November 2022 by holding a member ballot, taking industrial action, encouraging its members to take industrial action and making public statements regarding such action.

 The Australia Nursing Federation received a penalty of $350,000 for organising a State-wide strike of 1,808 members on 25 November 2022, providing transportation to strike events and paying 939 members a strike pay subsidy, which was in contravention of the Commission’s orders and had a major impact on the State health system.

Background

In mid-July 2022, negotiations began between the Australian Nursing Federation (ANF) and the West Australian Department of Health (Department) for a new industrial agreement covering ANF members in public hospitals in the state.

In mid-October 2022, ANF members authorised potential industrial action, including a strike between 24 and 30 November 2022.

In early November 2022, the Department requested a compulsory conference to assist negotiations under s 44 of the Industrial Relations Act 1979 (WA).

On 15 November 2022, the Department made a conditional offer with a three percent wage increase, contingent on the ANF stopping planned rolling stoppages. After agreeing 'in principle' to the offer, ANF members were to vote on it.

On 17 November 2022, ANF Secretary, Ms Reah, expressed dissatisfaction with the offer, suggesting a State-wide strike if members voted 'no.' An online poll opened on 18 November 2022, and remained open until 22 November 2022, for ANF members to vote on the offer.

On 18 November 2022, the Senior Commissioner convened another compulsory conference between the ANF and Department representatives. Following the conference, the Senior Commissioner issued orders to postpone the ballot for ANF members to vote on the employer's offer and prohibited the ANF from making any public statements or commentary regarding voting for or against the offer or requesting a better offer.

Relevantly, the Senior Commissioner made the following order:

1. THAT the ANF, by its officers, employees and members, must defer the conduct of any ballot, poll or survey of members to gauge the level of support for acceptance of the Offer until 9:00 a.m. on 28 November 2022;
2. THAT from the time of issue of this Order and the conclusion of any ballot conducted in compliance with this Order, the ANF, by its officers and employees, are not to make any public statements, commentary or media statements, whether in writing or verbally, which:

(a) portray the ANF, its officers or employees as maintaining a claim for a replacement agreement with terms that are better than the Offer;

(b) direct or encourage in any way its members to vote for or against acceptance of the Offer.

…

Between 18 and 23 November 2022, the ANF violated orders by keeping the ballot open beyond the specified date and making public statements against the orders, including plans for a State-wide strike on 25 November 2022.

On 22 November 2022, Ms Reah announced the rejection of the offer in the ballot and declared a State-wide strike on 25 November 2022. Preparations for the strike continued. These included the creation of a 'Strike Guide,' an offer to provide a 'strike pay subsidy' of $150 to members who might incur pay deductions due to their participation in the industrial action, and the publication of information regarding bus services to facilitate member transportation to the Parliament House rally.

On 23 November 2022, the resumed compulsory conference before the Senior Commissioner occurred. The Department sought interim orders to halt the planned strike, citing the ANF's short notice, its demand for a five percent wage increase, and the potentially severe impact on the state's health system.

The Senior Commissioner was not persuaded that the risks of the planned industrial action could be adequately managed or mitigated. She noted that there was a serious and significant risk to the health and safety of the public and employees, the Department’s authority to manage the health system and the community’s interest in having access to safe, high-quality health services.

The Senior Commissioner made the following relevant orders:

1. THAT the respondent, by its officers, employees and members, must refrain from taking and cease the specified industrial action.

Specified industrial action means industrial action on and from 25 November 2022 comprising work stoppages, being absent from duty, walking off the job or closing hospital beds.

But excludes:

(a)     attendance at a rally organised by the ANF where the attendance is outside rostered work hours.

(b)     absences due to genuine illness or injury, or for carer’s leave or on approved leave; and

(c)     work stoppages by an employee based on the employee’s reasonable concern about an imminent risk to their health or safety; where the employee did not unreasonably fail to comply with a direction of the Employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Employer means any employer party to the WA Health System ‑ Australian Nursing Federation ‑ Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses ‑ Industrial Agreement 2020.

(No Strike Order)

2. THAT by no later than 10.00 am on 24 November 2022, the respondent is to inform its members employed by an Employer of the terms of this Order and direct its members to comply with this Order* by:

(a)     email transmission to such members;

(b)     publication of the Order on the respondent’s website;

(c)     publication of the Order on the respondent’s Facebook page; and

(d)     placing a copy of this Order on the notice boards usually used by any Employer for the purposes of communicating with the Employees.

*Note that the respondent may be liable for a failure by its members to comply with this Order in accordance with the principles in Ducasse v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1995) 76 WAIG 330 at 333.

(Notice Order)

3. THAT the respondent, by its officers, employees, agents and members are not to direct, encourage, in any way, employees working for any Employer to engage in any specified industrial action, including by paying or offering to pay employees who are absent from duty without authorisation or walk off the job.

(No Encouragement Order)

4. THAT the respondent by its officers, employees, agents and members are not to engage in public commentary or media statements which incite, promote, encourage, or notify of any specified industrial action.

(No Public Comment Order)

…

After the conference, Ms Reah told the media, in effect, that the strike would still occur on 25 November 2022. Ms Reah also sent a letter to the Senior Commissioner stating, in effect, that the ANF does not intend to comply with the 23 November 2022 orders.

On the evening of 23 November 2022, Ms Reah emailed ANF members, sharing a document titled 'ANF Strike Guide 2022,' providing strike details and mentioning a $150 strike pay subsidy.

On 24 November 2022, the Senior Commissioner’s Associate summoned Ms Reah to attend a compulsory conference on 25 November 2022.

On the morning of 25 November 2022, Ms Reah publicly refused to respond to the summons and emphasised her prioritisation of ANF members. She did not attend the compulsory conference.

On 25 November 2022, approximately 1,758 ANF members working in the public health system engaged in industrial action, violating the No Strike Order. The actions involved walking off the job or not reporting for duty. These activities included rallies held at multiple locations across the State, such as Parliament House and Dumas House in Perth, as well as in Albany, Broome, Bunbury, Geraldton, and Karratha. The ANF arranged and financed bus services through Horizons West to transport members to the Parliament House rally, with around 1,470 members registering for this service. Additionally, the ANF provided various materials to participants in preparation for the rallies, and speeches were delivered by Ms Reah and others representing the ANF at these gatherings.

On 28 November 2022, the Senior Commissioner directed the Registrar to initiate proceedings before the Full Bench to enforce her orders of 18 and 23 November 2022, and for Ms Reah’s failure to comply with the summons. Additionally, the Senior Commissioner consulted with the ANF regarding the possibility of directing the Registrar to issue a summons to the ANF to appear before the Commission in Court Session, to show cause why its registration should not be cancelled or suspended due to non-compliance with her orders of 18 and 23 November 2022.

On 3 December 2022, during an urgent meeting of the ANF Council, resolutions were passed, including the commitment to pay fines resulting from alleged breaches of orders on behalf of the ANF, the Secretary, employees, and members. The ANF also agreed to reimburse members for wage deductions of up to $150 for participating in the 25 November 2022 strike.

During these events, the ANF received extensive media coverage, during which the organisation publicly and repeatedly expressed its defiance of the Senior Commissioner's orders of 18 and 23 November 2022 and criticized the Commission for issuing them.

Contentions

The Registrar commenced these proceedings under s 84A of the Act in response to the failure of Ms Reah to respond to the summons to attend the compulsory conference on 25 November 2022, and the ANF’s failure to comply with the Senior Commissioner’s orders. Ms Reah and the ANF largely admitted the alleged conduct.

At the outset of the proceedings on 12 April 2023, the Registrar's counsel informed the Full Bench that the conferral of the parties had led to an agreed position regarding a proposed penalty for consideration. The agreed penalty against the ANF amounted to $350,000, with the Registrar’s allocation of the proposed penalties for each contravention as follows:

Counsel for the Registrar contended that the agreed penalty amount and the table should be considered in light of the course of conduct principle and the totality principle.

Senior counsel for Ms Reah and the ANF confirmed that the agreed total penalty of $350,000 for the ANF and a maximum penalty of $10,000 for Ms Reah. They suggested that the total sum should be apportioned among the 39 categories of contraventions, resulting in a penalty of approximately $8,974.35 per category, close to the maximum $10,000 penalty per contravention as prescribed by the Act.

Initially, senior counsel for Ms Reah stated that she proposed to give an undertaking that all further orders of the Commission would be complied with in the usual form and manner. The Registrar responded that such an undertaking fell far short of what could be regarded by the Full Bench as a mitigating circumstance under s 84A(4)(a) of the Act. Further, the Registrar submitted that, given the conduct and behaviour of Ms Reah and the ANF, there was no contrition or remorse expressed as a part of the undertaking and that it ought to be given little weight. The following day, 13 April 2023, Ms Reah and the ANF filed documents entitled ‘Undertaking As To Future Conduct’, which acknowledged the gravity of the conduct, assured compliance with future orders and

…reassure[d] the Full Bench that its' future conduct in relation to matters within the jurisdiction of the Western Australian Industrial Relations Commission (‘WAIRC’) will be unqualifiedly according to the provisions of the IR Act

Findings

 The Full Bench ordered and declared that:

1. Ms Reah failed to comply with a summons issued under s 44(3) of the Act on 24 November 2022, and she personally pay a penalty of $10,000 to the State, within 21 days; and
2. the ANF contravened, or failed to comply with, the orders of the Senior Commissioner of 18 November 2022 and 23 November 2022, and that it pay a penalty of $350,000 to the State, within 21 days

Kenner CC

On balance, the Chief Commissioner was satisfied that the State-wide strike by the ANF had a major impact on the State health system. Further, the total number of employees taking industrial action on 25 November 2022, by walking off the job or failing to report for duty, was 1,808. Those 1,808 employees were members of the ANF.

It was an agreed fact that 1,470 ANF members registered for the buses on the ANF iFolio system. Offering free bus transport to members to enable them to walk off the job or to be absent from duty, so they can attend a rally as a key part of an act of industrial action, and the taking up of that offer by a process of registration of intent, was an act of encouragement by the ANF to take part in the strike on 25 November 2022.

 The Registrar submitted, and the ANF did not contest, that a comparison of the lists of staff recorded as having taken unpaid strike leave on 25 November 2022 and those members of the ANF registering for bus transport to the rally, at Parliament House, contained 808 names common to both lists.  On balance, the Chief Commissioner was satisfied that 808 members of the ANF contravened or failed to comply with the No Encouragement Order in this respect. 

 Finally, as submitted by the Registrar, and seemingly accepted by the ANF, the Chief Commissioner found that 939 ANF members were paid a strike pay subsidy.

 The Chief Commissioner accepted the Registrar’s approach to agreed penalties. This approach enabled the Full Bench to determine the outer limits of the maximum penalties that may be applicable, before weighing in the balance both the course of conduct and totality principles, to establish an appropriate, final penalty amount.

 It was appropriate that Ms Reah pay the maximum penalty of $10,000 because she was the leader of the ANF and its principal spokesperson during the dispute leading to the State-wide strike and was, at all material times, the public face of the ANF campaign. Further, Ms Reah’s deliberate non-compliance with the summons to the s 44 conference before the Senior Commissioner on 25 November 2022 required a significantly high specific and general deterrent to make clear that such acts of non-compliance will not be tolerated by the Commission. Ms Reah’s undertaking as to future conduct was also taken into account.

 The Chief Commissioner found that the agreed penalty of $350,000 is a just and appropriate outcome because it reflects the serious nature of the ANF’s conduct, which occurred over a considerable period. The ANF’s conduct was contumacious and was at the most extreme end of the seriousness criterion. The ANF's most serious conduct was its public defiance of the Commission's orders and its outspoken criticism of those orders, which was exacerbated by its deliberate and highly publicised actions conveyed through the media. The tone of the ANF’s communications was belligerent non-compliance.

 The ANF Council unanimously resolved to ignore the Senior Commissioner’s Defer Ballot Order and affirmed on multiple occasions to proceed with the unlawful industrial action, contravening the Senior Commissioner’s No Strike Order.

 The ANF Council’s deliberate and open resolution to pay any fines resulting from the breach of the Senior Commissioner's orders and, in clear defiance of the No Encouragement Order, provide the strike pay subsidy to members affected by the strike, was most contumacious and highlighted the need for specific and general deterrence.

 Such actions by the ANF Council were aggravating factors.

However, the mitigating circumstances included the ANF’s undertaking and that the ANF largely admitted the allegations in the Registrar’s particulars of claim. Further, the ANF was not the subject of any prior s 84A enforcement action by the Full Bench.

Kucera C

Commissioner Kucera agreed with the Chief Commissioner’s reasons, including the assessment of the number of breaches and how those breaches are characterised. Commissioner Kucera considered that the Chief Commissioner’s conclusion that the 3,590 individual contraventions that the Registrar particularised, each capable of constituting a single contravention for which the ANF was potentially liable, was unavoidable.

 Further agreeing with the Chief Commissioner, Commissioner Kucera stated that the ANF repeatedly breached the No Encouragement Order when it determined a member's eligibility for and made strike payments. This non-compliance persisted over an extended period, indicating a pattern of intentional violations for each payment made. Despite being a part of a continuing course of conduct, the conduct is not a single contravention. This attracts a higher overall penalty.

 Commissioner Kucera outlined the background facts before finding that the ANF made no effort to comply with the Defer Ballot and No Further Claims orders. But instead, it actively and deliberately, resolved to and did defy such orders publicly.

 The ANF endorsed and supported the conduct outlined in Ms Reah’s letter to the Senior Commissioner by passing resolutions regarding the State-wide strike. The ANF breached the No Encouragement Order by arranging buses for strike participants and paying $140,000 in strike payments to 939 members. Commissioner Kucera considered that the ANF knowingly accepted the risk of potential consequences for violating the Commission's orders, essentially viewing any potential penalties as a cost of doing business.

 The State-wide strike’s impact on the public health system, including the cancellation of elective surgeries and outpatient appointments, was significant.

 In absence of the ANF’s undertaking, the penalty imposed would have been more than $350,000 because the ANF had not expressed remorse for the conduct.

Emmanuel C

Commissioner Emmanuel considered a penalty of $350,000 insufficient to meet the requirements of specific and general deterrence in this matter. The outcome proposed by the parties reflects one ‘that the contravening party may simply see as an acceptable cost of doing business’. Such a quantum would not be a just and appropriate outcome.

Considering the seriousness and overall contumacy of the ANF’s conduct and the ANF’s repeated public statements that it would defy the orders, Commissioner Emmanual would order that the ANF pay a penalty of $480,000.

The decision can be read here.