Australian Nursing and Midwifery Federation-Northern Territory Branch

[2017] FWC 4100

[2017] FWC 4100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.238—Scope order

Australian Nursing and Midwifery Federation-Northern Territory Branch
(B2017/237)

COMMISSIONER WILSON MELBOURNE, 8 AUGUST 2017

Scope order application relating to whether employees to be involved in bargaining were fairly chosen.

[1] This matter concerns an application for a scope order made by the Australian Nursing and Midwifery Federation (‘ANMF’) in respect of bargaining proposed for a new enterprise agreement for certain employees of the Miwatj Health Aboriginal Corporation (Miwatj Health).

[2] All but one employee of Miwatj Health, its Chief Executive Officer, are presently covered by the Miwatj Health Aboriginal Corporation Enterprise Agreement 2013 1 (the 2013 Agreement), the nominal expiry date of which is 29 August 2016. As a result of the approval decision, the 2013 Agreement covers the United Voice, Northern Territory Branch and the Australian Nursing Federation, Northern Territory Branch.2

[3] Miwatj Health provides frontline health services across a large part of East Arnhem Land with its head office being in Nhulunbuy, Northern Territory. It employs about 169 people, including approximately 33 nurses.

[4] The 2013 Agreement provides for a specific nursing stream with classifications for nurses of Nurse 2 to Nurse 8.

[5] Through a Notice of Employee Representational Rights (‘NOERR’) issued to certain employees on 13 March 2017, Miwatj Health indicated an intention to commence bargaining with its employees for agreement to replace the 2013 Agreement. The critical part of the NOERR was in these terms;

“Miwatj Health Aboriginal Corporation gives notice that it is bargaining in relation to an enterprise agreement (MITWATJ HEALTH ABORIGINAL CORPORATION ENTERPRISE AGREEMENT 2017) which is proposed to cover all of the following employees:

Nurse (Registered Nurse/ Registered Midwife) Level 2 to Level 4 inclusive;

Aboriginal Health Worker Level 1 to Level 3 inclusive;

Aboriginal Health Practitioner Level 4 and Level 5; and

Administrative Officer Level 1 to Level 6 inclusive.”

[6] The practical effect of the NOERR was to exclude from the coverage of a potential agreement 12 positions currently covered by the 2013 Agreement; eight of which are nursing positions and 4 of which are covered by other classifications in the 2013 Agreement. Of the eight nursing positions;

● 4 are classified as Nurse 5;
● 3 are classified as Nurse 6; and
● 1 is classified as Nurse 8

[7] Miwatj Health does not presently employ anyone at the Nurse 7 level.

[8] Further, for the purposes of context;

● the 2013 Agreement does not have a Nurse 1 level;
● Miwatj Health does not employ anyone at the Nurse 2 or Nurse 3 levels; and
● Miwatj Health employs 25 people at the Nurse 4 level.

[9] Having had the NOERR drawn to its attention, the ANMF engaged with Miwatj about its limitation. That engagement followed earlier correspondence since at least November 2016 when the ANMF began to press Miwatj Health for the commencement of bargaining for a replacement agreement. The earlier correspondence – at least as provided to the Commission – does not go to the subject of who would be covered by replacement agreement; instead it merely goes to the subject of when bargaining could be expected to commence.

[10] The post-NOERR engagement from the ANMF was specific – it sought Miwatj Health reissue the NOERR so it did not exclude employees covered by the 2013 Agreement and if not, it would make application to the Commission for a scope order.

[11] Miwatj Health’s response to the ANMF correspondence was firm; while it would consider the issue raised by the ANMF it was “not of the view at this point in time (given the consultation and agreement between Miwatj Health and the employees the ANMF NT Branch refer to below) that the NOERR should be re-issued”. 3 The consultation referenced within the correspondence appears to be a reference to matters set out within the ANMF emails acknowledging a dialogue between the ANMF and Miwatj Health on the subject of renewal of the enterprise agreement.

[12] On 23 March 2017 the ANMF filed an application in the Commission for a scope order. That application was the subject of conciliation conferences before me on 19 April, 4 May and 25 May 2017, however those conferences did not resolve the ANMF’s concerns.

[13] The application therefore falls to be determined through this decision.

[14] The matter was the subject of a hearing on 12 July 2017 at which the submissions and documents of both parties were received, as was the evidence of Ariana Tutini, Miwatj Health’s Director of Human Resources, who gave evidence on behalf of Miwatj Health.

[15] Broadly, the evidence, submissions and documents before the Commission allow the findings that:

• Miwatj Health considers each of the 12 positions excluded from the NOERR scope (the Excluded Positions), including the eight nursing positions in question (the Excluded Nursing Positions), to be part of its senior management. 4



• Miwatj Health proposes to offer each of the employees presently engaged in the Excluded Positions a common law contract specific to their employment. Its motivation in doing so is to follow through on its realisation that it could “gain organisational benefits if its senior leadership and management teams were not included in the new enterprise agreement and instead had independent common law contracts with Miwatj Health”. 5 The terms of such a contract have not yet been put to any of the employees in question.



• The benefits seen by Miwatj Health for removing the Excluded Positions from the scope of bargaining for a new enterprise agreement include “flexibility in setting individual terms of employment for its senior managers”; using reward based payment arrangements to “promote greater efficiency” and building respect and trust within people holding the positions. 6



• Miwatj Health has consulted with each of the employees presently engaged in the Excluded Positions and none of them have an objection to Miwatj Health’s proposal. 7



• All but one of the Excluded Nursing Positions has within their required duties a clinical nursing component of some kind, although such component may not be great. 8



• The Excluded Nursing Positions are either located at a specific clinic of Miwatj Health alongside other nurses and other health professionals; have organisational rather than clinical responsibilities; or they move between clinics.



• In addition to the Excluded Nursing Positions, Miwatj Health employs about 25 nurses at the Nurse 4 levels.



• An employee engaged under the 2013 Agreement who performs higher duties, including employees in nursing positions lower than Nurse 5, is entitled to be paid a Higher Duties Allowance if they meet certain conditions (Clause 25 – Higher Duties Allowance).

[16] The ANMF draft order is in the following terms;

“[1] Pursuant to s.238 of the Fair Work Act 2009, and consistent with my decision in matter number B2017/237, I order that the scope of Employee classifications to be covered by the proposed replacement enterprise agreement for the Miwatj Health Aboriginal Corporation Enterprise Agreement 2013 (“current Agreement”), as expressed in the Notice of Employee Representational Rights, be amended cover Nurse (Registered Nurse/Registered Midwife) Level 2 to Level 8 inclusive.

[2] This Order comes into effect on [Day] [Month] 2017 and ceases to be in operation at the earliest time as set out in s.239(b) of the Act.”

[17] The application requires determination under s.238 which provides a discretion to the Commission to make a scope order in the circumstance set out in ss.238(4) and (4A). As referenced in the ANMF Draft Order, s.239 makes provisions for the operation of an order. The two sections are in these terms (noting that is unnecessary for the purposes of this decision to reproduce ss.238(1), (2), (3), (5), (6) and (7));

“238 Scope orders

(1), (2), (3) …

When the FWC may make scope order

(4) The FWC may make the scope order if the FWC is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

(b) that making the order will promote the fair and efficient conduct of bargaining; and

(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d) it is reasonable in all the circumstances to make the order.

Matters which the FWC must take into account

(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

(5), (6), (7) …

239 Operation of a scope order

A scope order in relation to a proposed single-enterprise agreement:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earliest of the following:

(i) if the order is revoked—the time specified in the instrument of revocation;

(ii) when the agreement is approved by the FWC;

(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.”

[18] In summary, the Fair Work Act 2009 (Cth) (‘the Act’) enables a scope order be made if the Commission is satisfied of four matters; that the Applicant has met, or is meeting the good faith bargaining requirements; that an order will promote the fair and efficient conduct of bargaining; that the proposed group for the agreement was “fairly chosen”; and finally that it is reasonable in all the circumstances to make the order.

Good faith bargaining requirements

[19] The good faith bargaining requirements are set out within s.228 of the Act, which is unnecessary to be reproduced for the purposes of this decision. There is a debate between the parties as to the extent to which it may be said that the ANMF is meeting the requirements.

[20] The ANMF submits that it has met and is continuing to meet those obligations and put forward correspondence between themselves and Miwatj Health dealing with the concerns held by the ANMF about bargaining, as well as a basic chronology detailing its interactions with Miwatj Health. Within its submissions, the ANMF argues that Miwatj Health has been avoiding negotiations with the ANMF, 9 a proposition rejected by Miwatj Health which argues instead that it has been actively involved in preparing for negotiations.10 Miwatj Health also submits that the ANMF’s own application form indicates that no bargaining had commenced and that the process had not gone as far as the issue of the NOERR.

[21] In the matter of UFU v MFESB; MFESB v UFU and Others, 11 the Full Bench was called upon to consider the reference within s.238(4)(a) to the need for an applicant for a scope order to meet the good faith bargaining requirements. Particular to that case was the absence of either a concession by one party that the other was meeting the requirements; as well as the absence of an accusation by either party that the other was not bargaining in good faith. On that occasion the Full Bench found as follows;

“[61] It can be seen that s.238(4) specifies four matters of which Fair Work Australia must be satisfied before it can make a scope order. We deal first with s.238(4)(a). We have concluded that the UFUA and the MFESB have met and are meeting the good faith bargaining requirements as required by s.238(4)(a). While the UFUA did not concede that the MFESB was bargaining in good faith, the UFUA’s position was based on the MFESB’s alleged refusal to meet in relation to the ACFOs, despite a recommendation of the Commission that it should do so. Whatever the position in relation to ACFOs, in an overall sense it is apparent that the UFUA does not accuse the MFESB of not bargaining in good faith. Any refusal by the MFESB to discuss the conditions of ACFOs is bound up with the reasons for the applications.”

[22] I am satisfied that the ANMF has met, or is meeting the good faith bargaining requirements. While Miwatj Health contended that the ANMF has not, because of its application, allowed bargaining to commence, that is not a submission to the effect that the ANMF is not meeting the good faith bargaining requirements. Nothing within the evidence and material before the Commission would lead to a finding that the ANMF has not met or is not meeting the good faith bargaining requirements.

Promotion of fair and efficient bargaining

[23] In a matter dealing with two different scope order applications the Full Bench has commented that the relative degree of promotion of fairness and efficiency in the conduct of bargaining “will obviously be relevant” in determining which of the competing applications should be accepted. 12 Further, it was observed that bargaining for two agreements in the same workplace “will involve a degree of duplication process and negotiation and thus be less efficient” than bargaining for one agreement13 but that in the instant case;

“[28] With respect, there was nothing in the evidence that provided a rational foundation for a finding that conduct of the bargaining for the two agreements proposed by the Company would be fairer or more efficient than it would for the single agreement proposed by the Union. The evidence in relation to which of the competing proposals would better promote the fair and efficient conduct of bargaining was inclined slightly in favour of a single agreement.” 14

[24] While the foregoing finding by the Full Bench was in relation to the matters within s.238(4A), it also has relevance to the question of the efficient conduct of bargaining. Whether a proposition for bargaining for two agreements is fairer or more efficient than it would be for a single agreement, or vice versa, will depend on the evidence and the circumstances before the Commission. It has also been said that there is to be no presumption that preference ought to be given to agreements that cover as much of an enterprise as is possible. 15

[25] In this particular matter there is, of course, only the one scope application before the Commission; albeit that Miwatj Health have issued a NOERR at odds with the scope order application made by the ANMF.

[26] A matter which is addressed in the ANMF’s submissions is that it would be less fair to occupants of the Excluded Nursing Positions for them not to be brought within the scope of bargaining because not making the scope order as sought would result in the affected employees relying on the Nurses Award 2010 (‘the Award’) as their safety net contractual entitlements. 16

[27] In the overall context of the Act and the operation of the 2013 Agreement, this ultimate fall-back of any person presently engaged in one of the Excluded Positions to award conditions appears unlikely, at least in the immediate future. The 2013 Agreement will continue to operate until either it is terminated perhaps for a reason within Part 2 – 4 of the Act or, more pertinently, because the combined operation of s.54(2)(b) and s.58 means there is no longer any employee to whom the 2013 Agreement applies.

[28] It would therefore appear that any person presently employed within an Excluded Position and which was not within the scope of a new enterprise agreement would continue to have their employment covered by the 2013 Agreement. If this is the case, then plainly any common law employment contract could only operate to the extent that it was neither inconsistent with the 2013 Agreement nor the National Employment Standards.

[29] Even so, there is some measure of potential unfairness from the fact there are persons presently occupying the Excluded Positions, as well as the Excluded Nursing Positions. The potential unfairness may arise because the 2013 Agreement, for so long as it continued in relation to any of the employees concerned, would not necessarily be varied to take account of contemporary conditions or other agreed matters.

[30] It is the case that the number of Excluded Positions, as well as the subset of Excluded Nursing Positions, is relatively small, respectively 12 and 8, comprising perhaps no more than 7% of the overall workforce.

[31] There is no proposal, so far as the Commission can see, for there to be negotiations toward a separate enterprise agreement for all or any subgroup of the Excluded Positions. In any event, such would be directly contradictory with the intention of Miwatj Health to have the incumbents of the Excluded Positions not within a new enterprise agreement, and instead be subject to common law employment contracts.

[32] While these matters may not amount to actual unfairness to the individuals concerned in their collective or individual bargaining positions if their circumstances are dealt with through individually negotiated common-law contracts, it is nonetheless something that may be taken into account in assessing the fairness of the proposed bargaining. Potentially persons excluded from collective bargaining may find it more difficult to formulate and press their claims than may be otherwise the case.

[33] While clearly there would be no inherent unfairness from this circumstance to the people who were actually bargaining, there is or may be a potential unfairness to those who are excluded from the bargaining, albeit one at a likely low level given what is reported to the Commission about the wishes of the people concerned. Acceptance by the Commission of the scope order application made by the ANMF has the potential to overcome such level of unfairness as there may be within the Miwatj Health bargaining proposal.

[34] There appears, on the basis of the material presently before the Commission to be no particular or demonstrably quantifiable matter of efficiency pertaining to either the scope order application made by the ANMF or the bargaining process set out by Miwatj Health in its NOERR.

Fairly chosen; whether group geographically, operationally or organisationally distinct

[35] Within the context of an appeal considering the question of whether or not an agreement could be approved by the Commission, the Full Bench considered the question of employees being geographically, operationally or organisationally distinct and how those features connected with the wider proposition of the group covered by the proposed enterprise agreement was fairly chosen;

“[19] Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.

[20] It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.

[21] It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant. We note that there is a suggestion to the contrary in the oral submissions put on behalf of Cimeco when counsel submitted that:

“It was an erroneous approach to introduce the identification of the persons who were relevantly employed at the time of the making of the agreement for the purposes of testing the group chosen.”“ 17 (Reference omitted)

[36] In relation to the matter of the group being fairly chosen, Miwatj Health’s argument is primarily that all of the Excluded Positions are senior managers and leaders, all in supervisory or leadership roles. It is also argued that the separation of managerial staff is a common approach, with all those covered by the scope within its NOERR being operational and front line staff.  18

[37] In this regard, Miwatj Health submits that all of the Excluded Nursing Positions are engaged in frontline or operational duties and “all either have no clinical load at all or have approximately half of a clinical load”. 19 Miwatj Health does not rely upon their being a key geographical distinction but rather that there are significant operational and organisational distinctions which are significant and which should lead the Commission to be satisfied the group as proposed by Miwatj Health is fairly chosen.20

[38] In the matter of UFU v MFESB; MFESB v UFU and Others the Full Bench considered the potential for there to be a conflict of interest between those who are management employees and those of whom they manage. The Full Bench accepted that generally speaking such a conflict can exist, albeit in a wider context of workplace relations and corporate conflict. 21

[39] Having considered all of the relevant factors, the Full Bench in that matter determined that the interests of the relevant managers, the Commanders and ACFOs “are distinct from, and in some respects in conflict with, the interest of the ranks below them” such that the scope order of excluding them from the relevant bargaining “would promote the fair and efficient conduct of bargaining and that it would be more likely to be effective in that regard than a scope order specifying a group comprised of employees” to the highest levels contended. 22

[40] The evidence in respect of the senior management role of the Excluded Nursing Positions is at best slight. There is insufficient evidence before the Commission about the extent of the managerial authority of the Excluded Nursing Positions to be satisfied that their interests are distinct from or in any respects in conflict with the interest of the ranks below them.

[41] Of the 8 excluded nursing positions;

● The four Nurse 5 positions are Health Centre Managers and a Maternal and Child Health Manager.

Each has between 7 and 10 employees reporting to them, including registered nurses; aboriginal health practitioners; receptionists; drivers; specialist clinical coordinators; business support officer; and community workers, with the exact mix of each, if any, depending on the precise position.

Other than 1 of the 5 employees in question, each has approximately half a clinical load; that is the employee may spend 50% of their working time seeing clients and patients. The nonclinical time is taken up in mentoring, training, organising timetables and supplies and the maintenance of equipment.

The position which has no clinical load is a Health Centre Manager responsible for managing a patient information and record system as well as undertaking the mentoring and administrative duties also undertaken by other nurses at the same level.

● The three Nurse 6 positions are Health Centre or Program Managers.

One is the Malmaldharra Health Centre Manager, with 18 people reporting to them, including registered nurses; a receptionist; a business support officer and driver; security staff; patient travel officer and health community workers. This person has no clinical load.

Another is the Health Services Manager of two centres on Elcho Island who has 9 employees reporting to them, including registered nurses; committee workers; a practitioner manager; and a health centre manager (at the Nurse 5 level). This person has no clinical load.

The final Nurse 6 employee is the Mental Health and Alcohol and Other Drugs Regional Coordinator who has oversight of two mental health community workers and a registered nurse and spends the majority of their time seeing clients and patients.

● The sole Nurse 8 employee is the Director of Clinical Services who works across all clinics and health centres and has 16 direct reports, including registered nurses; a health coordinator; drivers; and a receptionist. The person holding this position has no clinical load and spends all of their time managing Miwatj Health’s clinical services.

[42] Having considered the position descriptions and other evidence available about each of the Excluded Nursing Positions, I am not satisfied they are operationally or organisationally distinct. Instead each of the positions in question appears to be directed towards providing good quality and comprehensive health services to clients of Miwatj Health. In some cases that was to be done through the provision of clinical services to patients. There was no question that the roles being performed by the Excluded Nursing Positions were directed towards the actual provision of nursing care.

[43] The Excluded Nursing Positions are not associated with a separately distinct health delivery program, and on the evidence before the Commission, all work within the same program as the nursing employees will be included in Miwatj Health’s bargaining. They are part of the same nursing operation as other nurses. Similarly, the Excluded Nursing Positions are not placed organisationally within some other separate reporting line to those nurses employed at lower classifications.

[44] The question for determination in this matter in relation to s.238(4)(c) and (4A) is whether the Commission is satisfied that the group as specified in the proposed ANMF draft order are fairly chosen, taking into account the factors referred to within the legislation and in particular whether the group is geographically, operationally or organisationally distinct.

[45] The draft order as proposed by the ANMF is that the group should be defined in such a way as to provide that the proposed enterprise agreement “cover Nurse (Registered Nurse/Registered Midwife) Level 2 to Level 8 inclusive”.

[46] In all respects I am satisfied that the group as defined by the ANMF’s draft order is fairly chosen, taking into account whether it is geographically, operationally or organisationally distinct.

Reasonable in all the circumstances

[47] Miwatj Health’s argument in relation to the provision of s.238(4)(d), which requires the Commission to be satisfied, before making an order that “it is reasonable in all the circumstances to make the order” relies substantially upon the evidence of Ms Tutini that it is the preference of the individuals themselves to be excluded. Since this decision relates to the question of whether the Commission should grant the scope order applied for by the ANMF, the Miwatj Health submissions are framed in the negative;

“25. Miwatj Health contends that the FWC should not be satisfied that it would be reasonable, in all the circumstances, to grant the scope order.

26. There is strong support from the Group to be excluded from the new enterprise agreement. Ms Tutini has provided evidence that the Group all strongly support Miwatj Health’s decision. Indeed, Miwatj Health would not have sought to exclude the Group from the new enterprise agreement if it did not have their support.” 23

[48] Ms Tutini’s evidence to the Commission was that the incumbents of the eight Excluded Nursing Positions did not wish to be covered by a replacement for the 2013 Agreement. The context of that evidence is that Ms Tutini spoke with each of the employees in question, gave them certain information and then ascertained their view, which she reports as follows, firstly with reference to discussions with the incumbents of the 12 Excluded Positions;

“22. Those employees all indicated to me that they were supportive of the initiative and agreed to be excluded from the new enterprise agreement. Miwatj Health intended to provide those employees with draft contracts of employment to consider. With the idea being that such contacts would be entered into once the new enterprise agreement had been finalised. However, as a result of the current scope application, Miwatj Health has put that on hold.

23. Prior to making a final decision to defend the application for a scope order brought by the Applicant, on 22 June 2017 the Chief Executive Officer and Director of Finance and I met with the 8 employees employed in the Nurse 5, Nurse 6 and Nurse 8 classifications. The purpose of that meeting was to give those employees a final opportunity to let Miwatj Health know whether they supported its initiative to not include those classifications in the new enterprise agreement.

24. At the meeting on 22 June 2017 we asked the employees if they wanted to speak about the issue that we had raised without us present. We left the employees alone to discuss the issue. Shortly afterwards, the CEO re-joined the group. The CEO told me that each of the 8 members of the group told him that they supported Miwatj Health’s decision to exclude them from the new enterprise agreement.”

[49] The Commission has not had the benefit of direct evidence from any of the employees in question, and the last sentence of the last paragraph above is plainly hearsay, since the CEO did not give evidence either. In the absence of direct evidence on the subject, I place little weight upon this evidence of Ms Tutini, although I do accept generally that the employees in question support and do not object to their employer’s proposal. Whether it can be said their support or lack of objection rises to the point at which it can be said they have a preference for their employer’s proposal is questionable on the evidence before me.

[50] The Commission has accepted in other cases that the preferences of employees are important and that weight should be accorded to those preferences; 24 however, such preference on its own is not determinative;

“[69] The reasons advanced to support the UFUA application are based to a very large extent on the preferences of the operational employees generally and the Commanders and ACFOs in particular. Those preferences are important. So is the perception, expressed by a number of Commanders and ACFOs, that it would be unfair if they were not to be included in negotiations for an agreement covering operational staff generally. Viewed objectively, however, and having regard to what has been achieved to date, it is difficult to draw the conclusion that the interests of Commanders and ACFOs would be prejudiced if they negotiate their conditions separately. While there was a deal of information presented to us about the history of attempts to negotiate conditions for ranks above Senior Station Officer, there was little to support the conclusion that if the UFUA application was granted the conduct of bargaining would be fairer and more efficient than otherwise.” 25

[51] While the matter of employee preference is a matter to be taken into account in determining whether it should exercise a discretion of this nature, it is not determinative of the matter for consideration within s.238 (4) (d), that is of whether the making of a scope order is reasonable in all the circumstances.

[52] A further matter requiring consideration pursuant to s.238(4)(d) is that this application relates only to the 8 Excluded Nursing Positions. It does not relate to the other 4 positions that make up the 12 Excluded Positions. As noted earlier, the 2013 Agreement covers the United Voice, Northern Territory Branch and the Australian Nursing Federation, Northern Territory Branch. When Directions and a Notice of Listing were issued for the hearing of this matter, United Voice were provided with each; there were no submissions received from United Voice and no appearance on its behalf.

[53] I have considered whether, because the ANMF scope order application does not deal with the four remaining Excluded Positions it would not be reasonable in all the circumstances to make the order sought. I do not consider that to be the case. The four positions are very few in number; the employer does not wish them to be part of bargaining; on Ms Tutini’s evidence the employees do not wish to be part of bargaining; no organisation covered by the 2013 Agreement seeks them to be covered; there is no evidence before the Commission that would lead to the view that the positions either are not geographically, operationally or organisationally distinct to the Excluded Nursing Positions.

[54] In all circumstances I consider it to be reasonable to make the order and will do so in the form proposed by the ANMF.

[55] As a result an order will be issued by the Commission in the following terms;

“1. Pursuant to s.238 of the Fair Work Act 2009, and consistent with my decision in matter number B2017/237, I order that the scope of employee classifications to be covered by the proposed replacement enterprise agreement for the Miwatj Health Aboriginal Corporation Enterprise Agreement 2013 (the 2013 Agreement), as expressed in the Notice of Employee Representational Rights, is amended so that bargaining will;

“cover all of the following employees, as those classifications are defined in the 2013 Agreements:

Nurse (Registered Nurse/ Registered Midwife) Level 2 to Level 8 inclusive;

Aboriginal Health Worker Level 1 to Level 3 inclusive;

Aboriginal Health Practitioner Level 4 and Level 5; and

Administrative Officer Level 1 to Level 6 inclusive.”

2. This Order comes into effect on the date of this order and ceases to be in operation at the earliest time as set out in s.239(b) of the Act.”

COMMISSIONER

Appearances:

Mr Shane Klein, for the ANMF

Mr Ryan Gould, Solicitor of Clayton Utz for the Respondent

Hearing details:

2017.

Melbourne:

May 5.

 1   AE403607.

 2   [2013] FWCA 6377, [3].

 3   Exhibit A1, ANMF Outline of Submissions, Attachment C(a), 16 March 2017.

 4   Exhibit R2, Witness Statement of Ariana Tutini, [16]

 5   Exhibit R1, Miwatj Health Written Submissions, [2].

 6   Exhibit R2, [15].

 7 Exhibit R2, [21] – [22].

 8   Exhibit R1, [21].

 9   Exhibit A1, Attachment C, [1(a)].

 10   Exhibit R1, [14].

 11   [2010] FWAFB 3009

 12   Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd, [2014] FWCFB 1476, [24].

 13   Ibid, [26].

 14   Ibid.

 15   UFU v MFESB; MFESB v UFU and Others, [2010] FWAFB 3009, [56].

 16   Exhibit A1, [9].

 17   Cimeco Pty Ltd v CFMEU, AWU, AMWU and CEPU, [2012] FWAFB 2206.

 18   Exhibit R1, [16] – 17].

 19 Exhibit R1, [20] – [21].

 20   Ibid, [24].

 21   UFU v MFESB; MFESB v UFU and Others, [2010] FWAFB 3009, [67].

 22   Ibid, [70].

 23   Exhibit R1.

 24   Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd, [2014] FWCFB 1476, [29].

 25   UFU v MFESB; MFESB v UFU and Others, [2010] FWAFB 3009.

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