RECOMMENDATION

Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute

Australian Nursing and Midwifery Federation
v
Healthscope Limited
(B2014/1731)

COMMISSIONER CLOGHAN

PERTH, 22 JANUARY 2015

Alleged dispute concerning agreement by ballot.

[1] On 23 December 2014, the Australian Nursing and Midwifery Federation (ANMF or Applicant) made application to the Fair Work Commission (Commission) to deal with a bargaining dispute pursuant to s.240 of the Fair Work Act 2009 (FW Act).

[2] The Applicant is in dispute with Healthscope Limited (Employer) for a proposed replacement enterprise agreement entitled Mount Hospital - Registered Nurses - Enterprise Agreement 2014-2018 (Replacement Enterprise Agreement).

[3] A conciliation conference was set down for 13 January 2015 but was postponed at the request of the Employer.

[4] A conciliation conference was held on 21 January 2015 and attended by representatives of the ANMF and the Employer. At the conference on 21 January 2015, I was advised by the ANMF that the parties had agreed to the terms and conditions of the Replacement Enterprise Agreement including wage rates.

[5] The Employer confirmed that agreement had been reached on the terms and conditions of the Replacement Enterprise Agreement.

[6] Following discussions with the parties separately and together, I recommend that the agreed replacement enterprise agreement be put to employees no later than 27 February 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation contested an alleged dispute concerning an agreement by ballot against Healthscope Limited, which was heard by the Fair Work Commission. The Federation argued that Healthscope had failed to negotiate in good faith regarding a proposed enterprise agreement. The dispute centred on the negotiation process and whether Healthscope had adequately fulfilled its obligations under the Fair Work Act 2009.

The central legal issue before the Commission was whether Healthscope had breached its duty to bargain in good faith. This required a detailed examination of the communication and negotiation processes between the parties, including the manner and substance of the discussions, and whether Healthscope had demonstrated a willingness to consider the Federation's proposals and respond in a timely and reasonable manner.

In its decision, the Fair Work Commission assessed the conduct of both parties throughout the negotiation process. The Commission found that Healthscope had not acted in good faith in several respects, including the failure to provide substantive responses to the Federation's proposals and the imposition of unreasonable deadlines. The Commission concluded that these actions constituted a breach of Healthscope's obligations under the Act, thereby invalidating the proposed enterprise agreement. The Commission ordered Healthscope to recommence negotiations with the Federation in good faith and directed further steps to facilitate the resolution of the dispute.

The Commission's final orders required Healthscope to engage in further negotiations with the Federation to reach an agreement. This included a requirement for Healthscope to provide substantive responses to the Federation's proposals and to avoid imposing unreasonable deadlines. The orders also mandated that both parties engage in conciliation and mediation to resolve any outstanding issues. The Commission's decision underscored the importance of good faith bargaining in the negotiation of enterprise agreements and reinforced the rights of employees and their representatives under the Fair Work Act 2009.

Australian Nursing and Midwifery Federation v Healthscope Limited

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established