Australian Nursing and Midwifery Federation

[2017] FWC 1137

[2017] FWC 1137

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

Australian Nursing and Midwifery Federation
(D2015/60)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 27 FEBRUARY 2017

Application for alteration of eligibility rules.

Introduction

[1] This decision concerns an application made under s.158(1) of the Fair Work (Registered Organisation) Act 2009 (the RO Act) by the Australian Nursing and Midwifery Federation (ANMF) for consent to the alteration of its eligibility rules. The application was signed and lodged on 17 August 2015.

[2] Attached to the application is a declaration by Lee Thomas, the Federal Secretary of the ANMF to the effect that the alteration had been endorsed by the ANMF Federal Council on 3 August 2015 in accordance with the rules of the ANMF.

[3] The application is to later Rule 5 “Eligibility for Membership” of the ANMF by adding a new rule 5.2.7 as follows:

“In the State of Tasmania employees who provide or assist in the provision of nursing care or nursing services provided that employees primarily engaged as cooks, cleaners, kitchen or laundry assistants, gardeners or maintenance employees shall not be eligible for membership of the Federation under this sub-rule.”

[4] The original application was intended to provide a broad expansion of coverage in Tasmania to those workers who provide nursing care or nursing services. I note that the structure of the ANMF rules is to provide for certain additional coverage on a state by state basis. Until this application, Tasmania had been the exception to this approach.

[5] The application was gazetted in the Commonwealth of Australia Gazette on 7 September 2015 and also published on the Fair Work Commission’s website. The ANMF also published a notice on its website.

[6] Objections were received from the following unions:

● Australian Services Union (ASU)

● Community and Public Sector Union (CPSU)

● Health Services Union (HSU)

● Australian Salaried Medical Officers Federation (ASMOF)

[7] Section 158 of the RO Act relevantly provides:

“158 Change of name or alteration of eligibility rules of organisation

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation—the FWC consents to the change under this section; or
(b) in the case of an alteration of the eligibility rules of the organisation:

(i)  the FWC consents to the alteration under this section; or
(ii)  the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a) is not the same as the name of another organisation; and
(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and
(b) that would more effectively represent those members.

(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Actthe industrial interests of a particular class or group of employees; and
(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent—that date; or
(b) in any other case—the day of the consent.

(10)  This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or
(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or
(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.”

Commission Proceedings

[8] The matter was originally allocated to Senior Deputy President Richards who conducted mention hearings on:

● 26 November 2015

● 22 January 2016

● 10 March 2016

● 5 April 2016

[9] Directions were issued for the parties to confer and ultimately for conciliation to be chaired by a member of the Commission.

[10] Commissioner Cirkovic chaired conciliation conferences on 3 May and 31 May 2016.

[11] The matter was then allocated to me.

[12] I conducted a direction hearing by telephone on 26 August 2016.

[13] Directions were issued for the filing of submissions and evidence on 29 August 2016.

[14] The matter was set down for hearing on 20 – 24 February 2017 in Hobart and 7 – 10 March in Melbourne.

[15] A hearing took place on 20 September 2016 in relation to a number of notices to produce lodged by the HSU. Ultimately notices were served on a number of employers in Tasmania. Partial agreement was reached on the provisions of membership information by the ANMF prior to the substantive hearing.

[16] The ANMF had proposed to amend the application in August and made a further amendment which was put to the objectors in mid-December 2016. The ANMF therefore sought consent in part to the rule change based on the amended application. This led to settlement being reached with the four objectors.

[17] The Commission was advised by the ANMF of the amended proposal by letter on 10 January.

[18] There was a further telephone mention on 17 January at which the settlements were confirmed. Accordingly, the directions were amended.

[19] The final hearing took place in Melbourne on 21 February 2017 at which the settlements of the objections were formalised.

The Amended Rule Change

[20] The amended rule change to which the ANMF seeks consent is:

“PROPOSED RULE TO WHICH CONSENT IN PART IS TO BE SOUGHT

5.2.7 In the State of Tasmania employees primarily engaged in providing nursing care under the direct or indirect supervision or at the direction of a registered nurse, registered midwife, enrolled nurse or medical practitioner and who are:

a) Engaged (howsoever titled) as an assistant in nursing, personal care assistant or extended care assistant in a for profit or not for profit residential aged care facility; or

b) Engaged under the Health and Human Services (Tasmanian State Service) Award in the classification as provided for at 1 December 2016 of Health Services Officer (HSO) 4 or HSO5;

Providing that nothing in sub-rule 5.2.7(b) shall render eligible for membership of the Federation employees (however titled) engaged as non-direct care staff, technicians, orderlies, allied health professional assistants, therapists or therapy assistants, or employees engaged in ambulance services.”

[21] It is well settled that the Commission can grant consent to an application which is a limited version of the original application. That is undoubtedly the case here as the amended application restricts the extension to a residential aged care facility, the named classifications in the Tasmanian public sector and excludes the classifications named in the proviso.

[22] Each of the objecting unions confirmed settlement and the withdrawal of their objections at the hearing on 21 February. Their settlements were referred on transcript and the relevant documentation is contained on the Commission’s file as agreed between the parties.

[23] For the record I note the settlements as follows:

(a) HSU

The Settlement is contained in an exchange of letters between the ANMF and HSU on 10 January 2017. The ANMF confirmed that it sought partial consent in terms of the amended rule change and the HSU confirmed that it would withdraw its objection.

(b) ASMOF

The settlement is contained in a deed executed by the ANMF on 1 December 2015 and ASMOF on 30 November 2015. The ANMF undertakes that it does not seek to cover registered medical practitioners and ASMOF members or disturb the status quo between the two unions.

(c) ASU

The settlement is contained in a deed executed on 30 January 2017. The ANMF acknowledges, inter alia, that it does not seek to disturb the ASU coverage in the SACS and local government sectors in Tasmania.

(d) CPSU

The settlement is contained in the letter from the ANMF’s legal representatives dated 3 February 2017.

[24] Having considered the material filed in support of the application, as amended, and the settlements between the ANMF and the four objectors, I am satisfied that there has been compliance with the requirements of the RO Act and the Fair Work (Registered Organisation) Regulations 2009. I am also satisfied that:

1. The change has been made under the rules of the organisation (s.158(2)); and

2. The proposed alteration to the eligibility rules does not mean that there is another organisation to which those who would be eligible because of the alteration could more conveniently belong and that would more effectively represent those members (s.158(4)).

[25] I therefore consent to the changes to the eligibility rules sought by the ANMF.

[26] The change to the eligibility rules of the organisation will take effect seven (7) days from the date of this decision.

DEPUTY PRESIDENT

Appearances:

E. White of counsel with P. Gardner, solicitor and N. Blake for the ANMF;

M. Irving of counsel with B. Anson, solicitor and L. Svendsen for the HSU;

J. Nucifora with J. Knight for the ASU;

M. Perica with T. Wright for the CPSU;

M. De Vecchios for ASMOF.

Hearing details:

2016

Sydney:

August 26 (telephone conference);

September 20.

2017

Sydney:

January 17 (telephone conference).

Melbourne:

February 21.

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