WA's nurses' and midwives' union has been compared to Hitler in a legal dispute which it says could see it fined more than $27 million for staging a major strike at parliament house last year.
The Industrial Relations Commission (IRC) is claiming the union "wilfully" and "flagrantly" flouted its orders not to strike.
The IRC Registrar is alleging 3,590 breaches by the union's members, and a separate one by its secretary, Janet Reah.
That included 939 breaches relating to payments made by the union to members who had their pay docked as a result of going on strike.
Lawyers for the registrar have not indicated how much they would like to see the union penalised.
Both sides are set to discuss that matter at the end of Tuesday's hearing.
IRC orders ignored
The November 25 rally saw thousands of nurses and midwives gather at parliament house and a number of regional locations, demanding at least a five per cent pay rise.
Ms Reah and the ANF ignored both an order from the Industrial Relations Commission to call off the strike, and to appear before the commission on the day it was held.
The government is maintaining its current offer of between three and 4.5 per cent, plus the implementation of nurse-to-patient ratios.
Speaking before the hearing, Ms Reah said she was puzzled why each breach was being treated separately.
"It seems that they just want to maximise the absolute penalty to the nth degree," she told reporters.
"It's unheard of, $27 million in potential fines."
Ms Reah acknowledged the union had breached the commission's orders by holding the rally.
"We've not told anyone any differently. We're just wondering why they want to beat us down so badly."
Health Minister Amber-Jade Sanderson said the imposition of any fine would be "entirely" a matter for the commission.
"Bargaining can be tough, and I expect all unions to bargain hard on behalf of their members, but everyone has to listen to the independent umpire. It is there to protect the community as well as employers and unions," she said.
Union compared to Hitler, Marx
In her opening address, the lawyer for the registrar, Cav. Maria Saraceni, described the union's actions in the lead-up to the November strike, including at a rally where union members voted on a plan for escalating industrial action, ending with the potential for a state-wide strike.
Cav. Saraceni said the union had written down what it planned to do and carried it out – comparing its actions to Adolf Hitler, before withdrawing her remarks after they were described as "offensive" by the ANF's lawyer, Tim Hammond.
She explained it was the first name that came to her mind, and instead compared the union to Karl Marx.
At a break in proceedings, Ms Reah said it "would have been nice" to have received an apology for that comment.
"I'm just wondering what kind of country we're living in where an officer of the court likens the actions of the nurses union and the nurses and midwives of Western Australia, the plan that they had, to Hitler's Mein Kampf," she said.
Union's actions 'not good enough'
Cav. Saraceni said the breaches should be considered at the serious end, and "go to the heart of what the commission is about".
She described how the commission was set up, in part, to resolve industrial disputes, but said that could only happen if all parties played their part, including by following the Commission's orders.
Cav. Saraceni told the commission it was "not good enough" for the ANF to pick and choose when it complied with the commission's orders, and that it had engaged in a "deliberate industrial strategy" by ignoring the instructions.
Ms Reah was "thumbing her nose" at the commission and showing "blatant disregard" for its orders, Cav. Saraceni said, when she sent a letter saying the union would go ahead with the strike less than 24 hours after being told not to.
Penalty to send a message
The commission was told by Cav. Saraceni that a penalty needed to be imposed both to send a message to Ms Reah and the ANF, but also other unions, that breaches of commission orders would be taken seriously.
The registrar was not seeking the deregistration of the union she said – as had been threatened last year – but only the imposition of a fine against Ms Reah and the ANF.
That's despite Ms Reah previously making comments that individual nurses could be fined by the commission.
"There is no reason for the union to protect nurses against the registrar," Cav. Saraceni said.
"The only penalty is against the union."
Cav. Saraceni did not wish to expand on her comments when she was approached by the ABC.
Strike numbers unclear
Jonathon Vincent, who is employed by WA Health, gave evidence that of the 2252 nurses who were absent from work on the day of the strike, 1,812 were recorded as being on "strike leave".
But defence lawyer Tim Hammond questioned how accurate that figure was, with 16 duplicate records included in the data – being people with the same first and last name.
Mr Vincent explained that in some cases, the data was pulled from a system more than 30 years old and running on MS-DOS.
He acknowledged the data was only as accurate as what was entered, but that staff had had four months to correct any inaccurate information.
The duplicates could result from the same person incorrectly being recorded twice, or because they were rostered on at two different hospitals on the same day.
Mr Vincent said it meant as many as four staff recorded as being on strike could have been duplicate entries – potentially making the true number 1,808.
Hundreds of operations cancelled
The commission also heard from Dr Tudor Codreanu, the health department's director of disaster preparedness, who was involved in managing the impacts of last year's strike.
Dr Codreanu said while the union had said the strike was only planned to last from 7am to 9pm, he was not convinced that would be respected.
"We had no idea what exactly was going to materialise in hospitals across the state," he said.
"I had to manage uncertainty."
His evidence showed 338 elective surgeries and 350 out-patient appointments had to be cancelled as a result, but he could not say how that compared to normal days.
The industrial action was estimated to have cost the health department at least $62,000 in administrative costs and replacement staff.
He said while the health system continued to operate at an acceptable level despite the strike, that was "not by luck, by preparation" and wasn't "without risks".
