Australian Nursing and Midwifery Federation v Adelaide Unicare Pty Ltd

[2013] FWC 5097

[2013] FWC 5097

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Australian Nursing and Midwifery Federation
v
Adelaide Unicare Pty Ltd
(B2013/1038)

COMMISSIONER HAMPTON ADELAIDE, 31 JULY 2013

Majority support determination - majority of employees wish to bargain - application not opposed - whether reasonable in all of the circumstances that a determination be issued - determination made.

1. Background

[1] This matter concerns an application by the Australian Nursing and Midwifery Federation (the ANMF) 1 for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act). The ANMF contend that a majority of the nursing staff employed by Adelaide Unicare Pty Ltd (Unicare) at the Minlaton Medical Centre wish to commence bargaining for an enterprise agreement.

[2] The ANMF provided a petition supporting the commencement of bargaining signed by six of the seven relevant nurses employed by Unicare.

[3] Unicare has not agreed to bargain but has ultimately not opposed the application. The employer has however provided a chronology of events leading to this point and requested the Commission take that into account.

[4] I convened a conference to hear further from the parties. Having sought their views on each of the statutory requirements relating to this application, I was satisfied that the various requirements for the making of a majority support determination had been met and it was reasonable in all the circumstances that the determination be made.

[5] In the circumstances, I also indicated that I would issue brief reasons for decision that would include some observations about the consequences of the determination to assist with the bargaining process.

2. The statutory requirements

[6] Sections 236 and 237 of the Act provide as follows:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

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

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement 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 (2)(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.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

3. Satisfaction that the determination should be made

[7] The ANMF is a bargaining representative of the relevant employees and it has made an application as required by s.236 of the Act.

[8] It is evident that a majority of the relevant employees of Unicare who will be covered by the proposed single-enterprise agreement, want to bargain. This satisfies s.237(2)(a).

[9] Unicare has not agreed to bargain or initiated bargaining for an enterprise agreement. This satisfies s.237(2)(b) of the Act.

[10] The group of employees are distinct with the meaning of s.237(3A) and I accept that they have been fairly chosen as required by s.237(2)(c) of the Act.

[11] Section 237(2)(d) of the Act requires the Commission to consider whether it is reasonable in all of the circumstances to make the determination.

[12] In Australian Municipal, Administrative, Clerical and Services Union v Equity Valet Parking Pty Ltd, 2 Watson VP said:

“[24] The scheme of the Fair Work Act is that terms and conditions of employment are determined at the enterprise level on the foundation of “fair, relevant and enforceable minimum terms and conditions.”

[25] Where employees wish to engage in bargaining the legislation gives them rights to engage bargaining agents and engage in bargaining processes. In circumstances where an employer has not agreed to bargain, bargaining orders under s230 of the Act are not available unless, among other things, a majority support determination is in operation.

[26] Both parties have rights in the bargaining process. They are free to discuss and agree on relevant matters and formulate any agreement in any available manner. They are equally free to disagree and exercise rights that may arise in such an eventuality.”

[13] As noted by the Vice President, there are of course other objects of the Act including those set out in s.3(f) concerning the achievement of productivity and fairness through an emphasis upon enterprise level collective bargaining and in s.3(g) concerning the special needs of small and medium-sized businesses.

[14] The desire of the majority of employees is an important consideration and supported by the scheme of the Act. There is also nothing unreasonable or inappropriate about seeking to advance a resolution of the issues proposed by the union for consideration in the bargaining process. The circumstances within the business are relevant considerations however particularly given the timing of this determination and the nature of the good faith bargaining obligations, 3 these do not mean that it would be unreasonable to issue the determination sought.

[15] Given that all of the requirements of s.237(2) of the Act have been met, I am obliged to issue the determination in accordance with s.237(1).

4. The determination and its consequences

[16] A majority support determination is being issued by the Commission in conjunction with this decision. 4 Consistent with s.237(4) of the Act, the determination comes into operation on the day on which it is made.

[17] As a result, Unicare must now take all reasonable steps to issue a notice of employee representational rights to each relevant employee as required by s.173 and s.174 of the Act. I note that s.173(3) requires, in effect, that the notice be issued within 14 days of this determination being made. The form and content of the notice is set out in s.174 of the Act and prescribed by regulation 2.04 and 2.05 and Schedule 2.1 of the Fair Work Regulations 2009.

[18] Further, the good faith bargaining obligations as set out in s.228 of the Act will now apply to all parties.

[19] As advised to the parties during the conference, s.240 of the Act contemplates the Commission assisting the parties with disputes arising in the bargaining process and either or both parties may seek that assistance at any time.

COMMISSIONER

Appearances:

A Kennett of the Australian Nursing & Midwifery Federation.

M Chalk of Adelaide Unicare Pty Ltd.

Conference details:

2013

Adelaide

July 26

 1   The Australian Nursing Federation became the Australian Nursing and Midwifery Federation on 25 July 2013.

 2   [2011] FWA 2036, 4 April 2011 per Watson VP.

 3   The good faith bargaining requirements in s.228 are broad enough to allow the circumstances of the business to be factored into the negotiations along with other considerations.

 4   PR539435.

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