Australian Nursing and Midwifery Federation v IPN Medical Centres Pty Limited

[2013] FWC 8257

[2013] FWC 8257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.242 - Application for a low-paid authorisation

Australian Nursing and Midwifery Federation
v
IPN Medical Centres Pty Limited and Others

(B2011/3940)

VICE PRESIDENT WATSON SYDNEY, 23 OCTOBER 2013

Application for costs - Fair Work Act 2009 - s. 611

Introduction

[1] This decision concerns an application for costs made pursuant to s.611 of the Fair Work Act 2009 (the Act) by IPN Medical Centres Pty Limited, Allied Medical Group Holdings Pty Ltd and Lonnex & Millennium Management Holdings Ptd Ltd (collectively referred to as IPN) against the Australian Nursing and Midwifery Federation (ANMF).

[2] The costs application was made by IPN on 20 September 2013, and was heard on 17 October 2013. At the hearing, Mr M Harmer appeared for IPN and Mr C Dowling of counsel appeared for the ANMF.

Background

[3] IPN’s application arose from an application made by the ANMF in November 2011, in which the ANMF sought a low-paid authorisation under s.242 to cover nurses employed in medical centres and general practices, referred to as practice nurses. A decision 1 was issued on 17 June 2013 dismissing the ANMF’s application.

[4] During the course of the lengthy original proceedings, more than 50 witnesses gave evidence, and substantial additional material was filed with the Commission. My conclusions on the application of the statutory test was expressed as follows:

“Public Interest

[151] The task of the Commission is to determine whether it is in the public interest to make the low paid authorisation taking into account all of the matters dealt with above. Having regard to the history of negotiations and the circumstances involved I have concluded that granting the application may provide some assistance to some low paid employees. However I have also noted that the authorisation will affect many others who do not fall within established notions of being ‘low-paid’ and the assistance that may be provided is likely to be minimal.

[152] Clearly the making of formal agreements under the Act is a key object of the Act and this is a factor that I should take into account. However “emphasis” is given to enterprise level collective bargaining. This has been described as a legislative preference for enterprise level collective bargaining. It is clear on the evidence in this matter that the ANF has not sought to utilise other forms of assistance provided in the Act for enterprise level collective bargaining. Further, its approach has a clear vocational element. It seeks to make an agreement or agreements relating only to practice nurses, notwithstanding the overlap in duties with other employees engaged in general practices.

[153] The method the ANF has adopted to try to reach an agreement has been to serve a uniform log of claims on a large number of employers seeking terms and conditions based on those applicable to public sector hospital nurses. The ANF’s approach is not consistent with a willingness to negotiate a package of benefits relating to the particular needs of each enterprise covering a wide range of award covered employees within the enterprise.

[154] In my view there is limited support for the application arising from a consideration of the possible assistance to some low paid employees, the objects of the Act, the bargaining strengths of the parties, the commonality of the enterprises and the views of some employees. Factors that detract from the application are the prospect of less attention to improvements in enterprise service delivery and productivity, the highly adversarial and cumbersome nature of the process that is likely to be involved and the strong opposition from employers and some employees. Factors which are essentially neutral are the history of bargaining, the current terms and conditions, the influence of third parties and the willingness to consider enterprise agreements.

[155] The consistent employer opposition to the notion of multi-enterprise bargaining combined with the diverse negotiation positions of the parties does not auger well for a possible multi-employer bargaining process. Indeed it is inevitable that such a process will face significant logistical difficulties. In my view there is a greater prospect of agreements being reached if negotiations are conducted at the enterprise level with appropriate utilisation of the facilitative provisions of the Act. Further, there is a greater prospect of meaningful enterprise improvements being negotiated if the negotiations are conducted at the enterprise level. The factors in support of making a low-paid authorisation are not strong. On balance I am not satisfied that it is in the public interest to make a low-paid authorisation.”

The legislation

[5] The costs order is sought under s.611 of the Act, which provides:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4 1).”

The Basis of the Application

[6] IPN submits that the ANMF’s application for a low-paid authorisation was fundamentally misconceived and made without reasonable cause. IPN also contends that on the basis of the facts available at the time the application was made, and at various times thereafter, it should have been reasonably apparent to the ANMF that the application had no reasonable prospect of success.

[7] IPN submits that one of the important considerations in determining whether to make a low-paid authorisation is in the public interest for the purposes of s.242 of the Act is whether the relevant employees described by the application could be considered to be ‘low-paid’. It says that the ANMF’s application ignored the ‘traditional’ meaning of low-paid as set out in relevant decisions historically applied by the Commission and its predecessors, and that as a result the application was made without reasonable cause. IPN submitted that on the basis of the most relevant authorities a very small proportion of employees covered by the application fall within the description of ‘low-paid’, and this should lead to the conclusion that the application was commenced without reasonable cause and had no reasonable prospects of success.

[8] The ANMF submits that the arguments advanced by IPN ignore the fact that the consideration of whether the employees concerned are low paid is one amongst many others to be taken into account in the Commission’s approach to a broad discretionary test.

Conclusions

[9] It is apparent from the extracts from my decision above that the test to determine whether to issue a low paid authorisation is not dependent on whether there is a significant proportion of low paid employees amongst the employees to be covered by the authorisation. The test is a very broad one of a discretionary nature where the overriding consideration is the public interest and guidance is given by a non-exhaustive list of relevant considerations. Although the heading of the relevant Division of the Act and its objects may imply otherwise, the legislation does not establish any criterion relating to low paid employees as a necessary precondition to granting an order.

[10]
In view of the test the Commission had to apply, the careful evaluation of evidence and the necessary weighing of competing and neutral considerations I am not able to conclude that the application was made without reasonable cause or had no reasonable prospects of success. It follows that, pursuant to the terms of s.611 if the Act, the Commission does not have jurisdiction to make an order for the payment of costs in this matter. The application for a costs order is dismissed.

VICE PRESIDENT WATSON

Appearances:

Mr M Harmer for IPN Medical Centres Pty Limited, Allied Medical Group Holdings Pty Ltd and Lonnex & Millennium Management Holdings Pty Ltd.

Mr C Dowling, of counsel for the Australian Nursing and Midwifery Federation.

Hearing details:

2013.

Melbourne.

October 17.

 1   [2013] FWC 511

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