Application to terminate collective agreement-based transitional instrument
[2012] FWA 4777
•15 JUNE 2012
[2012] FWA 4777 |
|
INTERIM DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Eastern Health
(AG2011/14887)
Health and welfare services | |
COMMISSIONER GOOLEY | MELBOURNE, 15 JUNE 2012 |
Application to terminate collective agreement-based transitional instrument.
[1] Turning Point was established in 1995 to provide drug and alcohol services through the provision of clinical services, an online and telephone counselling service and research and education. It employs professional and administrative staff.
[2] In October 2009 Eastern Health took over Turning Point and employees of Turning Point who were employed by Eastern Health became transferring employees. 1
[3] At the time of the transfer, Turning Point was a party to and bound by the Turning Point Alcohol and Drug Centre Inc Certified Agreement 2005 (the TPEBA) which is a transitional instrument. 2 The nominal expiry date of the Agreement was 31 March 2010.
[4] The union parties to the TPEBA are the Australian Salaried Medical Officers Federation (ASMOF), the Australian Nursing Federation Victorian Branch (ANF), the Health Services Union No 2 Branch (HACSU), the Health and Allied Services Union No 4 Branch (MSAV/PSA) and the National Tertiary Education Industry Union (NTEU).
Industrial Regulation at Eastern Health
[5] Eastern Health is bound by the following enterprise agreements and workplace determination which were made after the employees of Turning Point became employees of Eastern Health.
1. The Health Services Union - Health Professionals - Eastern Health Workplace Determination 2009 3 which came into operation on 12 October 2010 and had a nominal expiry date of 30 June 20114 (the Determination). This Determination was made pursuant to the Workplace Relations Act 1996 (the WR Act). Section 505 of the WR Act provided that the Determination binds the employees who are subject to the Determination. By 12 October 2010 the transferring employees within the scope of the Determination were employees of Eastern Health and therefore subject to the Determination.
2. Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Officers) Multiple Enterprise Agreement 2009-2011 5 (the Administrative Services EBA). This agreement was approved by Fair Work Australia on 8 August 2011 and came into operation on 15 August 2011 and had a nominal expiry date of 31 August 2011. By August 2011 the transferring employees who were within the scope of the Administrative Services EBA were employees of Eastern Health and therefore subject to the Administrative Services EBA.
3. The Victorian Public Health Sector (AMA Victoria)- Doctors in Training-Multi-Enterprise Agreement 2008-2012 6 (the AMA EBA) was approved by Fair Work Australia on 15 June 2010, subsequent to the transfer of Turning Point to Eastern Health and therefore transferring employees within the scope of the AMA EBA, are therefore subject to the AMA EBA.
[6] Part 5 Division 2 Item 30 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the FW TPCA Act) provides that once an enterprise agreement starts to apply to an employee a collective based agreement based transitional instrument ceases to apply to the employee. Therefore any transferring employees who were within the scope of the Administrative Services EBA and the AMA EBA are covered by those instruments and the TPEBA has no application.
[7] While uncontested evidence was given that transferring employees who were within the scope of the Administrative Services EBA were not provided with notices of representational rights and were not provided with an opportunity to vote on the Administrative Services EBA, the issue of the validity of the Administrative Services EBA, cannot be determined in this matter and Fair Work Australia must presume that the Administrative Services EBA is valid until such time as its status is determined by a court or an application to set aside the decision to approve the Administrative Services EBA is successful.
[8] HACSU submitted that the Determination did not apply to the employees as it was made on 3 April 2009. However it is clear that while a decision to make a determination was issued on 3 April 2009 the Determination was not in fact made until 12 October 2010 and therefore contrary to the submissions of HACSU, the Determination applies to the transferring employees who are within the scope of the Determination.
[9] As a consequence for some transferring employees the TPEBA has already been displaced by the Determination, the Administrative Services EBA or the AMA EBA and the applications of Eastern Health currently before the Tribunal do not affect these employees.
[10] It was agreed by the parties that if either application were approved by Fair Work Australia then some of the employees would be covered by the following industrial instruments:
1. Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007-2011 (the General Nurses EBA). The nominal expiry date of the General Nurses EBA was 1 November 2011 and bargaining for a replacement agreement has commenced.
2. Victorian Psychiatric Services Certified Agreement 2004-2007 7 (the Mental Health EBA). The nominal expiry date of the Mental Health EBA was 1 November 2011 and bargaining for a replacement agreement has commenced.
3. Public Health Sector (Medical Scientists, Pharmacists & Psychologists) Multi-enterprise Agreement 2008-2011 8 (the MSAV EBA). The nominal expiry date of the MSAV EBA was 31 December 2011 and bargaining for a replacement agreement has commenced.
4. Eastern Health - AMA Visiting Medical Officers Agreement 2005 9 (the VMO EBA). The nominal expiry date of the VMO EBA was 31 December 2004.
5. Australian Medical Association (Victoria) Limited, Australian Salaried Medical Officers Federation, Eastern Health Service, General Practitioner Obstetrician Visiting Medical Officer Certified Agreement 2004 10 (the AMA GPOVMO EBA). The nominal expiry date of the AMA GPOVMO EBA was 31 December 2005.
6. Eastern Health - AMA Full Time Medical Specialists Certified Agreement 2005 11 (the AMAMS EBA). The nominal expiry date of the AMAMS EBA was 31 December 2005.
7. Health Professionals and Support Services Award 2010 12 (the Health modern award) would apply to some of the employees.
[11] The NTEU submitted that the Educational Services (Post-Secondary Education) Award 2010 13 (the ES modern award) would also apply to some employees, though this is disputed by Eastern Health. The NTEU relies on the fact that Eastern Health is a higher education provider within the meaning of section 5 of the Tertiary Education Quality and Standards Agency Act 201114to support this submission.
[12] It is not disputed that Eastern Health is negotiating replacement agreements with the ANF, HACSU, HSU No 4 and HSU East. The NTEU has advised Eastern Health that is it a bargaining representative for its members. It is not Eastern Health’s intention to have a separate agreement for Turning Point employees.
[13] Eastern Health has made two applications:
1. An application to terminate the TP Agreement as it has passed its nominal expiry date. 15
2. An application that the TPEBA cease to cover Eastern Health and the transferring employees. 16
Submissions of Eastern Health
[14] Eastern Health seeks to align the Turning Point staff to various collective agreements that apply to Eastern Health staff generally. Eastern Health submitted that for any employees not within the scope of the collective agreements, the Health modern award would apply as its classification structure is generic in character and the indicative roles set out in the Health modern award are not exclusive nor intended to be exclusive. 17 However Eastern Health accepts that the Research and Educators could be technically award free if the applications were granted.18 Eastern Health has undertaken to negotiate with the MSAV to facilitate the translation of these employees19 and that any wage increases arising from the translation will be back dated to the date following the termination of the TPEBA.20
[15] Further, if there are employees outside of the scope of any Eastern Health collective agreement, Eastern Health gave an undertaking that “any employees in these categories, who would not, as a matter of law, be covered by an Eastern Health collective agreement, will be given the benefits and rights of the appropriate Eastern Health collective enterprise agreements as if they were covered, and Eastern Health were bound by those collective agreements.” 21
[16] Eastern Health submitted that “the material shows, and combined with the undertakings being given, all of the employees will be significantly better off overall.” 22 In addition to the wage increases “staff will also receive improvements in the quantum of professional/study/conference leave entitlements, and recognition through higher qualifications allowance where applicable. Improved conditions through access to ADOs and other flexibility options will also be available.”23
[17] Eastern Health submitted that having the transferring employees’ terms conditions regulated by the same industrial instruments as other Eastern Health employees, including any new TP employees, “will provide greater certainty of the continued provision of work undertaken by the employees of Eastern Health because estimates will be based upon more accurate costings which should be the same construct for all those employees.” 24
[18] Eastern Health accepted that there would be some change in the terms and conditions of employees but Eastern Health submitted that overall employees would be better off under the alternative agreements.
[19] Eastern Health submitted that the complaint by HACSU and the NTEU about the reduction in take home pay which occurred when the employees transferred to Eastern Health was due to the change in salary packaging arrangements which were a result of the transfer of the business to Eastern Health and “would have occurred regardless of and independently of this application.” 25
[20] Eastern Health submitted that it consulted the staff at Turning Point. It advised Turning Point staff on 14 June 2011 that it proposed to translate them to public health sector agreements. 26 Subsequently there were email communications to staff. On 12 September 2011 Eastern Health met with the NTEU.27 On 3 November 2011 an in principal proposal was put to Turning Point staff.28 On 6 December 2011 Eastern Health met with HACSU. On 9 December 2011 a further email was sent to staff and on 14 December 2011 all staff were advised of 3.25% wage increase as of 28 November 2011. On 14 December 2011 all staff and unions were provided with a copy of the proposed translation. On 21 December 2011 staff were advised they could meet individually to discuss the translation. There were further updates in late December and early January. On 11 January 2012 Eastern Health met with HSU No 4 and a further proposed translation document was circulated to staff on 13 January 2012. On 25 January 2012 research, education and training staff were advised that they would be translated to the MSAV Agreement.
[21] Eastern Health submitted that state wide EBA negotiations had caused them to consider that the agreements which resulted from those negotiations would pick up Turning Point staff. However Eastern Health considered that “in the state wide theatre of negotiations, this relatively small group may be accidently overlooked and accidently omitted from procedural processes resulting in either being agreement free or under an agreement inconsistent with the rest of the organisation.” 29
[22] Despite, this the evidence established that these employees were in fact overlooked by Eastern Health in the bargaining for a number of agreements including some that have been approved by Fair Work Australia.
The submissions of the NTEU
[23] The NTEU is a party to the TPEBA. The NTEU has been attempting to negotiate a replacement enterprise agreement for its members at Turning Point with Eastern Health. Despite the TPEBA providing at clause 4.2 that such negotiations will commence three months prior to the expiry of the Agreement, the NTEU submitted that there has been an absence of good faith commitment from Eastern Health to negotiate a replacement agreement. 30
[24] The NTEU submitted that it would be contrary to the public interest to alter the balance of power in the negotiations by terminating the TPEBA.
[25] The NTEU submitted that termination of the TPEBA would be contrary to the objects of the FW Act in particular, section 3(e) and (f) and section 171.
[26] The NTEU submitted that its members and the Research and Education employees “have not been fully or properly informed by the applicant of the likely effect the termination of the agreement would have on upon them.” 31
[27] The NTEU provided statements from employees. Those statements addressed concerns about whether the employees would in fact become award/agreement free; whether Eastern Health would recognise the NTEU as their representative; the loss of certain entitlements; and the delay in the negotiations for a replacement agreement. 32
[28] The NTEU submitted the classification structure proposed by Eastern Health will result in a reduction in the salary for graduate entry employees. 33
[29] The NTEU submitted that if the TPEBA were to be terminated the Research and Education staff’s terms and conditions of employment would be reduced “to the bare minimum and limit the scope of industrial powers and rights that their chosen representative, the NTEU, could exercise.” 34
[30] The NTEU submitted that under section 318 Fair Work Australia can make “an order in respect of only some employees.” The NTEU therefore submitted that the Research and Education staff should be excluded from any order.
[31] The NTEU submitted that there would be “no identifiable significant or genuine economic disadvantage to the applicant by the continuation of the current agreement.” 35
Submissions of MSAV/PSA
[32] The MSAV/PSA does not oppose the application, provided Eastern Health gave certain undertakings about the preservation of the research and education employees terms and conditions and the terms under which their terms and conditions will be included in the replacement agreement for the MSAV EBA. 36
Submission of HACSU
[33] HACSU submitted that many of the employees are still covered by the TPEBA. 37
[34] HACSU opposed the application to terminate the Agreement. HACSU submitted that it would be contrary to the public interest to terminate the Agreement while negotiations for an agreement which would apply to these employees is occurring. HACSU supported the submissions of the NTEU on this point. 38
[35] HACSU submitted that employees wished to participate in the current round of bargaining. 39
[36] HACSU submitted that employees had not been provided with notice of employee representational rights despite the fact that Eastern Health indicated that it wanted the employees to be covered by the replacement agreements. 40
[37] HACSU submitted that the proposed translation of employees’ classifications are inappropriate. 41
[38] HACSU submitted that Eastern Health would suffer no detriment if the TPEBA was to continue in operation until such time as it was replaced by another agreement. 42
[39] HACSU submitted that section 318 of the FW Act permits Fair Work Australia to make different orders for different employees. 43
Submissions of the Australian Medical Association (Victoria) and the Australian Salaried Medical Officers Federation (the AMA)
[40] The AMA supported the application of Eastern Health. 44
[41] The AMA submitted that employees would be regulated by other agreements which are generally more favourable to the employees than comparable entitlements under the TPEBA. 45
Other parties
[42] The Health Services Union East Branch did not oppose the application. The ANF was neutral about the Eastern Health applications.
The application to terminate the TPEBA
[43] Item 16 of Schedule 3 of the FW TPCA Act provides:
“16. Collective agreement-based transitional instruments: termination by FWA
(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”
[44] Subdivision D of Division 7 of Part 2-4 of the FW Act states:
“225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
226 When FWA must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:
(a) FWA is satisfied that it is not contrary to the public interest to do so; and
(b) FWA considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”
[45] If the Agreement was terminated, then some employees’ terms and conditions will be regulated by:
1. Agreements.
2. A modern award.
[46] It was suggested that some of the employees may be award free.
[47] In Royal Automotive Club of Victoria 46 Commissioner Roe provided a useful summary of the matters that the Tribunal can have regard to in assessing the public interest and views of the parties and I have adopted this approach.
The Public Interest
[48] Commissioner Roe identified the following factors that may be relevant to a finding that termination may not be in the public interest.
● Whether the safety net will be significantly undermined?
● Whether vulnerable employees will be affected?
● Whether the objective of good faith bargaining and the making of agreements will be harmed?
● Whether there are provisions of the Agreement itself in respect to renegotiations of the agreement would be compromised as this would undermine the integrity of bargaining and agreements?
● Whether the right of employees to be represented and or have access to effective dispute resolution procedures would be significantly affected?
● Whether there are any specific circumstances concerning the impact on the economy or the business, productive work, the maintenance of respect for observance of the terms of agreements, fair industrial relations, or work and family balance.
[49] While I am not convinced on the evidence before me that any of the employees will be award free 47 for the purpose of this decision, I will assume that the research and education and training staff will be award free if either of the applications are approved. These employees will receive the benefits of agreements currently applying by virtue of the undertaking given by Eastern Health. I accept the NTEU and HASCU’s submissions that the position of some employees will be less legally secure with some reliant on a modern award and some award free. A reduction of the safety net to the modern award for some employees does not in these circumstances raise public interest concerns. However, that employees will be award free, does significantly undermine the safety net. I note that it is not the intention of Eastern Health that these employees remain reliant on the modern award or remain award free. Negotiations are occurring for agreements which will apply to these employees.
[50] There is no evidence that any vulnerable employees will be affected.
[51] There is no evidence that terminating the TPEBA will have an impact on the negotiations for a replacement agreement or agreements. The TPEBA expired in March 2010. These applications were not made until 29 December 2011. It can hardly be argued that what prevented the negotiations for and finalisation of a replacement agreement for Turning Point were these applications.
[52] I do not accept the submissions that the termination of the TPEBA would prevent the NTEU participating in negotiations for a stand alone agreement 48 or for the various public sector agreements that are currently being negotiated. I do not accept the employees’ evidence that they would be required to have another union represent them. If the NTEU is entitled to represent their industrial interests then that can continue. If it is not, then that is not a consequence of this application but a result to the transfer of employment to Eastern Health. There was no suggestion that the NTEU is not a bargaining representative for these employees and as a bargaining representative it has the right to represent it members and avail itself of its rights under the FW Act. If Eastern Health is refusing to recognise the NTEU as the employees’ bargaining representative then the NTEU has mechanisms under the FW Act to have that remedied.
[53] I accept that the employees’ and the NTEU’s ability to influence the outcome of the negotiations may be reduced but that is a consequence of the transfer of their employment to Eastern Health and is not affected by the decisions in these matters.
[54] It is relevant that the TPEBA committed the parties to discussing a new agreement no later than 31 December 2009. This did not occur. It is not clear from the submissions why this did not occur. The NTEU submitted that it had been attempting to negotiate a new agreement since 2010 and those negotiations were resisted by Eastern Health. The NTEU was granted a secret ballot order and members have engaged in industrial action in support of an agreement. 49 There has been no application for a scope order throughout this time.50
[55] The other unions that are negotiating with Eastern Health for replacement agreements are negotiating agreements which will apply to all employees who are within the scope of their rules. For example the ANF, HACSU, Health Services Union East Branch and MSAV/PSA are negotiating replacement agreements for their members which include their members at Turning Point. There is no evidence that they seek to negotiate a stand alone agreement for Turning Point.
[56] I accept that some employees, who are agreement free will not be able to use the dispute resolution procedures to access Fair Work Australia if their disputes are unresolved. However, some will have access to the dispute resolution procedure in the modern award which provides for consent arbitration. In circumstances where Eastern Health has undertaken to afford employees the rights applicable under the relevant agreements that undertaking must be taken to include access to consent arbitration as the MSAV EBA provides for arbitration of unresolved disputes. I accept that if there are award free employees they will have no legal recourse to dispute resolution procedures.
[57] There is no evidence or submissions of any other matters that give rise to any public interest concerns.
[58] Despite my concerns about the award free employees, in light of Eastern Health’s undertakings and the fact that bargaining for new agreements is taking place 51, on balance, I find that there are insufficient public interest grounds to refuse to terminate the Agreement.
Is terminating the Agreement appropriate in the circumstances
[59] As Eastern Health has made the application, it is relevant to have regard to the factors they rely upon to support their application. It is said that Eastern Health seek to establish common terms and conditions for employees doing the same work across Eastern Health. However it is worth noting that Eastern Health has successfully operated without this synergy since October 2009 and it did not at the time of the transfer make an application that the TPEBA not apply to them as they were entitled to do under section 318 of the FW Act. There was no substantive evidence put forward as to any negative impact on Eastern Health of the continued operation of the TPEBA. The evidence of Mr Anthony Denham does not suggest that the work of the Turning Point employees has been integrated with other Eastern Health programs delivering similar services. Nor is there any suggestion that a significant number of new employees have been engaged so as to cause difficulties for the management of Turning Point staff.
[60] Other matters which are relevant are:
● Are the employees opposed to termination?
[61] This application is supported by all bar two of the unions. Nine employees have signed letters opposing the termination. I am prepared to assume as there is no evidence to the contrary that the views put by NTEU and HACSU reflect views of the employees. While Eastern Health advised that it had consulted employees it did not produce any evidence to show that employees supported the application.
● Is the employees’ opposition well founded?
[62] Some of the employees expressed concern about:
● Being left in legal limbo;
● Loss of bargaining power;
● Refusal of Eastern Health to recognise the NTEU;
● Parental leave;
● Return to work on a part time basis after parental leave;
● Flexibility of working hours;
● Conversion from fixed term to continuing appointments;
● 48/52 arrangements;
● Part time appointments.
[63] Apart from 48/52 arrangements (though I note that the MSAV Agreement provides for purchased leave) the other conditions are comparable to the conditions in the agreements that currently apply at Eastern Health. For example, employees are entitled to ten weeks paid parental leave and are entitled to request to return to work part time after parental leave. Further, the agreements provide for many improved terms and conditions.
[64] If some of the employees are award free then this represents a significant diminution in their legally enforceable terms and conditions. If it were not for the undertakings of Eastern Health and the fact that replacement agreements which will include these employees, are being negotiated, my decision would have been different.
[65] In paragraph 52 above I addressed the employees’ concerns that they will not be able to be represented by the NTEU.
[66] I note that the classification structure proposed by Eastern Health is rejected by HACSU and the NTEU. For example HACSU argues these employees are not Community Development Workers as the employees work solely with individuals. 52 The NTEU argues that the entry level pay rate is too low.
[67] The pay rates appropriate for these employees are part of the bargaining for a replacement agreement. The appropriate classification structure going forward and the translation of the Turning Point employees is a matter for bargaining for a replacement agreement. That is the case whether the TREBA is terminated or not as replacement agreements will be negotiated as has already occurred for some employees.
[68] Apart from the concern about being left in legal limbo, I do not consider the concerns of the employees is well founded. Their concerns arise because they previously had a stand alone agreement and will now be subsumed by agreements that have much wider application. Their negotiating power will be impacted because they will be required to participate in multi-enterprise bargaining whereas they had previously been able to negotiate a Turning Point specific agreement. All of this is a consequence of the transfer from Turning Point to Eastern Health and would not be impacted by the termination of the TPEBA.
● Will there be an adverse affect on good faith bargaining and or on the making of collective agreements?
[69] There is no doubt that Eastern Health is bargaining for enterprise agreements that will apply to the Turning Point employees. It is not bargaining for a replacement agreement that only applies to Turning Point. However the scope of an agreement is a matter for bargaining and whether the TPEBA is terminated or not, this will not be affected. There is no evidence to suggest that Eastern Health is not negotiating the replacement agreements in good faith or that replacement agreements will not be made.
● Will there be an adverse effect on the rights of employees to be effectively represented?
[70] While some employees are concerned that they will be required to be represented by a different union, this is not the case if the NTEU is entitled to represent their industrial interests. Further, the employees covered by the existing agreements and awards are able to be represented by a representative of their choice. 53
Interim Decision
[71] While Eastern Health indicated in its submissions that it would provide an undertaking no such undertaking has been provided.
[72] In all the circumstances, I have decided that should Eastern Health provide the undertaking referred to in its submissions 54 it would be appropriate to terminate the Agreement taking into account the views of the parties and the likely effect on them as required by section 226.
[73] I will therefore issue the following direction:
Eastern Health file and serve a signed copy of the undertaking set out in paragraph 9.1 of the exhibit EH4 by close of business on 22 June 2012.
COMMISSIONER
Appearances:
K Minogue and R Hull for Eastern Health
R Thomas and J Cullinan for National Tertiary Education Union
R Felmingham for the Australian Medical Association
R Felmingham for the Australian Salaried Medical Officers Federation
N Keogh for the Health Services Union East Branch
V Bellot and P Elliott for Health Services Union No 4 Branch
B Soraghan and P Gilbert for the Australian Nursing Federation
L Svendsen for the Health Services Union No 2 Branch
Hearing details:
2012.
Melbourne:
January 31, February 14, April 3.
1 See Section 311(2) of the Fair Work Act 2009
2 See Schedule 3 Part 2(3) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
3 PR502144
4 HACSU made submissions that the determination was made on 3 April 2009 ([2009] AIRCFB 353) which was before the employees transferred to Eastern Health. While the decision to make the determination was issued on 3 April 2009, section 504(2) of the Workplace Relations Act 1996 provides that a workplace determination comes into operation on the day on which is it made and the determination provides that it comes into operation on 12 October 2010. (PR502144)
5 PR512742
6 PR998356
7 PR955229
8 PR996190
9 PR968120
10 PR954973
11 PR968124
12 MA000027
13 MA000075
14 Exhibit NTEU 1
15 See section 225
16 See section 318
17 Exhibit EH 4 at page 7 and page 9
18 Ibid at page 15
19 Ibid at page 15
20 Ibid
21 Ibid at page 9
22 Ibid at page 13
23 Ibid at page 14
24 Ibid at page 15 and page 16
25 Exhibit EH 6 at [16]
26 Exhibit E 1 at tab communications
27 Ibid
28 Ibid
29 Ibid E 4 at page 18
30 Exhibit NTEU 1
31 Ibid
32 Ibid attachment 2
33 Exhibit NTEU 1
34 Ibid
35 Ibid
36 Exhibit MSAV 1
37 Exhibit HACSU 1
38 Ibid at [27]-[31]
39 Ibid at [34]
40 Ibid at [35]
41 Ibid at [37]-[38]
42 Ibid at [58]-[60]
43 Ibid at [62]
44 Exhibit AMA 1 at [13]
45 Ibid at [15]
46 [2010] FWA 3483
47 The classification of health professionals in the health modern award are generic in character and arguably pick up both research and education staff. Further the NTEU submitted that the ES modern award would apply to these employees.
48 However its ability to apply for a scope order would be limited by the existence of various single interest employer declarations that have been issued which apply to Eastern Health.
49 Exhibit NTEU 1
50 I note that such an order may not have been able to made for some of the employees after the single interest employer declarations that bind Eastern Health were made.
51 The ANF and HSU East Branch Agreements are currently out for ballot.
52 Exhibit HACSU 1 statement of Stephen Kress at [18]
53 See clause 9 of the MSAV Agreement, clause 11 of the ANF Agreement and clause 9 of the Health modern award.
54 Exhibit EH 4 at page 15
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