Australian Nursing and Midwifery Federation v RSL Care RDNS Limited T/A Bolton Clarke
[2019] FWC 4452
•12 JULY 2019
| [2019] FWC 4452 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.238 - Application for a scope order
Australian Nursing and Midwifery Federation
v
RSL Care RDNS Limited T/A Bolton Clarke; RDNS Homecare Limited T/A Bolton Clarke
(B2018/1134)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 12 JULY 2019 |
Application for a scope order – fair and efficient bargaining – scope of order sought – application dismissed.
[1] On 4 December 2018, the Australian Nursing and Midwifery Federation (the ANMF) made an application under s.238 of the Fair Work Act 2009 (the Act) for a scope order. Conferences were held on 12 December 2018 and 26 March 2019, and written submissions and witness statements were filed. I have taken account of all submissions and evidence.
[2] Employees of Bolton Clarke are covered by the Royal District Nursing Service Ltd Victorian Operations Enterprise Agreement 2016 (RDNS agreement), the RSL Care Enterprise Agreement 2015 (RSL agreement), the Royal District Nursing Service Homecare and Australian Services Union, Homecare employees – Victoria – Enterprise Agreement 2014 (RDNS Homecare Agreement), the Royal District Nursing Service, New South Wales Nurses Enterprise Agreement 2012 (NSW RDNS Agreement) and the Royal District Nursing Service – Tasmania – Nurses Enterprise Agreement 2012 (Tas RDNS Agreement), although there is some debate about which employees are covered. 1
[3] The ANMF seeks an order pursuant to s.238 of the Act: ‘The order sought is, in effect, that the Respondents’ employees in Victoria should be covered by a proposed agreement’. 2
[4] The application was filed after the sixth of twelve negotiation meetings. The parties were bargaining over an employer proposal that there be a national agreement applying to all Bolton Clarke employees, while the ANMF proposed that there be a separate Victorian agreement for Victorian employees which contained Victorian common conditions. Bolton Clarke and the ANMF, one of nine unions and others, met for twelve meetings, and neither changed their position in relation to this fundamental issue of a national agreement or a Victorian agreement, although Bolton Clarke compromised by offering an ‘RDNS Annexure’ which ‘grandfathered’ Victorian RDNS conditions for those who had them. Bolton Clarke emailed the bargaining representatives on 13 March 2019 attaching a clean copy of its proposed national agreement with tracked changes, and advising them that it was its final offer, and that it would proceed to a ballot in accordance with the Act. 3 The agreement contained an ‘RDNS Annexure’, which was in form the existing RDNS agreement, to apply to all those who currently receive RDNS entitlements.4 Those entitlements would not apply to new employees, or to employees who changed jobs, and provided that employees could opt into the main provisions while maintaining their current salary. Some or many employees under the RDNS agreement would also receive wage increases, even substantial increases, although the numbers and extent were disputed.5 These proceedings were concerned however, as the ANMF submitted, with the efficiency and fairness of the process of bargaining, not with the outcomes proposed by each side. The employer cooperated with proceedings and agreed to defer the vote on its proposed agreement until the conclusion of these proceedings.
[5] The parties made a good effort to resolve the issues during an adjournment, but were unable to do so.
[6] The following witnesses provided witness statements and gave evidence at the Hearing:
• Ms Megan Reeves; 6
• Mr Mitchell Hoover; 7
• Mr Luke Smeaton; 8
• Ms Elizabeth Perdomo; 9
• Ms Karynne Ann Paull; 10
• Ms Patricia Marjorie O’Hara; 11
• Ms Janene Rodgers; 12
• Ms Fiona Louise Hearn; 13
• Mr Everett Claudio McIvor; 14 and
• Mr James Patrick Toohey. 15
[7] Also admitted into evidence were witness statements of:
• Ms Roslyn Holland; 16
• Mr Andrew John Brakey; 17
• Ms Megan Zoy Millman; 18 and
• Ms Deirdre Anne McGill. 19
Submissions
[8] The ANMF submitted that the scope of the agreement ‘has plagued the negotiations from the start’, 20 criticised the employer for the delay in starting negotiations, and said that the national agreement approach had involved ‘an unwieldy and unworkable number of bargaining representatives across Australia’, said the communication means was ‘unreliable’ which affected communication, and made it difficult for employees in Victoria.21
[9] It submitted that the requirements of s.238(4)(b) were met. It submitted that making the order would promote the fair and efficient conduct of bargaining for reasons including the difficulties in communication, the difficulties arising from different interests and the large number of representatives, different to those in Victoria, and delays in commencing negotiations. 22
[10] In the outline of reply submissions, the applicant submitted that the RDNS Annexure, which preserved the RDNS agreement for those that already had those entitlements, left in place ‘the divisive application of two agreements’, 23 and dealt with a range of other matters. It denied that it did not engage in good faith bargaining as alleged by the employer, and submitted that it sought clarification from the employer about which RDNS provisions were ‘a barrier to achieving common conditions across Victoria’, and said that seeking ‘maintenance of claims the other party finds unfavourable does not constitute breach of good faith bargaining obligations’.24 It submitted that the order would promote fair and efficient conduct of bargaining, and dealt with issues including the number of attendees from the ANMF Victorian Branch, bargaining would be more efficient in Victoria, in other States there is a greater commonality of conditions, the order would not put at nought negotiations which have occurred, other States were not a barrier, the employer one agreement objective, there are no flow on consequences for other States and there will be negotiations within and outside the scope order.25 It submitted that the group was fairly chosen, that the group was operationally distinct in that RDNS work is significantly different from the former RSL companies, the funding model, and Victorian standards. It submitted that the order was reasonable in all the circumstances, and addressed the submissions of the employer. It alleged that the employer delayed negotiations because of the scope issues, which led to unfairness and inefficiency.26
[11] In a further outline of submissions the ANMF adopted the reasoning of Cribb C in ANMF v. Hammond 27in relation to the issue of Victorian ‘standards’, and outline the inefficiencies that would be removed by making the order, which include representatives lack of familiarity with the Victorian industry ‘standard’, the reduction of negotiators from nearly 60 to around 10, difficulties in communication arising from technology, and reduction of disparate interests from interstate.28 It described the employer ‘grandfathering’ proposal in critical terms, stating only that RDNS provisions would be retained except for two issues (now no longer applicable), and said that it ‘entrenches and industrially disharmonious two-tier conditions structure’, prevents RDNS employees from accessing wage increases where they have not had them for nearly two years, and produces ‘operational difficulties’.29 It clarifies the position of Ms Reeve not accepting two enterprise agreements as wishing to avoid industrially disharmonious consequences, and deals with a number of other issues.30
[12] The employer outlined the ‘grandfathering’ proposal it had put to the ANMF, and outlined the nature of the negotiations which had led to this proposal and the draft national agreement (BCEA). In summary, an RDNS Annexure to the employer proposed national agreement would preserve all RDNS entitlements for those who had them, although not for new employees, or employees who change jobs. It submitted that RDNS employees would receive substantial wage increases during the life of the agreement. It concedes that the preconditions for an order set out in ss.238(1) and (2) are met. In relation to s.238(3) the employer disputes the claim that the applicant provided a written notice to all relevant bargaining representatives, a dispute later withdrawn, and the claim that it did not respond appropriately, although I note the test is that the applicant ‘considers’ that the bargaining representatives did not respond appropriately. It submits that the applicant has not bargained in good faith within s.238(4)(a), but engaged in ‘surface bargaining intended to lay the ground for a scope application’ to avoid majority approval of a national agreement, and made deliberately inflated and unrealistic demands designed to be unacceptable. It submitted in relation to s.238(4)(b) that bargaining proceeded efficiently, and gave reasons for this: noting there were ‘minor’ technological issues in communication, the applicant had many representatives, no others have made similar complaints, and problems that the order would cause so that the order would not promote fair and efficient bargaining including the unravelling of productive negotiations, a disruptive effect on the balance of negotiations, a different regime of conditions for Victorian employees, and negotiations would be replicated. Instead refusal of an order would promote bargaining because the draft can be put to ballot, and negotiations have proceeded fairly and efficiently for five months. 31
Applicant evidence
[13] Ms Megan Reeve gave evidence about the Royal District Nursing Service Ltd (RDNS), RSL Care, and Bolton Clarke. She said that RSL Care was a ‘long serving aged care provider based in Queensland and New South Wales with its principal operational focus on residential aged care and retirement villages’. 32 RDNS was Victoria’s largest and longest serving provider of district nursing services, these being ‘clinical services which are provided to people in their homes according to need…’.33
[14] Ms Reeve said that this ‘state based distinction’ continues in that Bolton Clarke in Victoria continues to provide care to clients through its ‘At Home Support’ program, and in Queensland and New South Wales primarily provides care to the elderly through 26 residential aged care facilities and retirement villages. Bolton Clarke in South Australia, Tasmania and Western Australia provides only ‘At Home Support’ services, which is a ‘very small part of the operations of Bolton Clarke in Queensland and New South Wales’. 34
[15] She outlined the operations of Bolton Clarke in Victoria, the agreements that apply to Bolton Clarke employees, and the alleged differences between the Victorian At Home Support program and ‘the way in which other organisations offer ‘home care’’, namely more nurses than other home care organisations, and the care is primarily delivered by certificate qualified carers, and ‘is often more clinically complex than that delivered by other home care organisations’. 35
[16] She outlined the merger of RDNS and RSL Care, and the effect, and the different terms between the RDNS agreement and the RSL Care Agreement. The effect is that employees ‘undertaking identical duties may be employed on different rates of pay and with different entitlements’. 36
[17] She said that in Victoria some 300 nursing agreements can be examined and ‘Victorian nursing industry standard conditions can be discerned (with sub-industry and enterprise level variability of course)’, derived ‘in the main’ from the pre-reform Nurses (Victorian Health Services) Award 2000, 37 with RDNS wages ‘traditionally been aligned with public sector rates of pay …’. She said that ‘wages are somewhat less standard’.38
[18] She traces the history of RDNS agreements, 39 and lists ‘standard Victorian nursing entitlements’, which are not included in the RSL agreement.40
[19] She lists conditions which are not provided for or are ‘inferior’ in the RSL agreement as opposed to the RDNS agreement. 41
[20] She then turns to the history of bargaining, beginning with the expiry of the RDNS agreement on 1 June 2018. 42 In particular, the ANMF concerns about bargaining include in summary ‘ongoing difficulties hearing participants located remotely’,43 ‘the number of participants and resulting logs of claim, and the different conditions of employment… negotiations difficult to progress’,44 ‘industrial history in Victoria has resulted in a set of nursing terms and conditions that are generally applicable across the sector in Victoria’, and it ‘may become necessary for Victorian employees to make a decision about compromising some of those terms’. The decision is ‘likely to be made for Victorian employees, on the basis of the greater number of employees in the rest of the country combined, who do not have those terms and conditions’.45 Detailed comparisons between proposed clauses and existing clauses are required, and this is difficult in the circumstances of a national agreement provided only at the ninth meeting and other circumstances.46 A separate Victorian agreement would shorten the process.47 The ANMF has to bargain ‘from a lower base than the majority of them currently enjoy and which historically all have enjoyed’.48 There is a ‘lack of knowledge in each of the States particularly other bargaining representatives’ lack of knowledge’ which limits progress,49 a separate Victorian agreement would not be likely to ‘result in increased administrative confusion or burden’,50 and the positions of others mean ‘no present impediment to the negotiation’ of a Victorian agreement.51
[21] She gave evidence in reply about the eleventh and twelfth meetings, and also disagreed that the RDNS had ‘largely public sector conditions for nurses’ 52 given the differences and the history of negotiations, and further observations about funding arrangements and other matters,53 rejects evidence about the need for a ‘single uniform work and workplace culture’,54 further observations about funding,55 and the events which occurred during negotiation meetings.56 She gives evidence about the ‘preservation position’ of the employer and ‘opt in’,57 and other matters in Ms Rodgers’ statement,58 including that as a matter of fairness Victorian terms and conditions compromises should be made by Victorian nurses, and other matters including meetings, Skype difficulties, delays in negotiation, the role of the Victorian public sector conditions, the positive role of Victorian representatives, and the effect of a scope order. Mr Herbert cross-examined Ms Reeve on her evidence.59
[22] Ms Roslyn Holland gave evidence about her extensive experience, and her view of the bargaining negotiations, which she attended but for one meeting. She said that ‘many ANMF (Victorian Branch) members have expressed to me their distress about this enterprise bargaining agreement’, including the ‘length of time of the negotiations, that there has not been a pay rise since mid-2017 and there is, it seems, little prospect of one’. They have expressed the view that ‘the employer does not appear to respect the distinct type of work we do in Victoria and that our current entitlements largely reflect the Victorian standard for nursing conditions of employment’. 60 She said that there are other problems.61 She said that Bolton Clarke sees Victorian agreement conditions as ‘irrelevant, or a past relic’.62 At the end of negotiation meetings she is ‘tired and frustrated by the lack of progress’,63 and wants Victorian employees to ‘reflect Victorian industry standards’, to keep or attract staff and excellent community nursing.64
[23] Mr Mitchell Hoover outlined the ‘At Home Support’ division of Bolton Clarke in Victoria, 65 and the different nature of Bolton Clarke work in Queensland and New South Wales.66 He said that he attended the negotiations and ‘negotiating over Skype has been tedious and difficult’, with ‘many parties attending’, ‘difficult to keep track of who is speaking’, ‘many self-appointed bargaining representatives in Queensland who have their own issues to voice’ and others discussing issues ‘that have little to no relevance for’ those in Victoria.67 He said that ‘there has been little progress in substantive negotiations to date’, including little discussion of logs of claim, costings are ‘brief, without context’, many of these challenges arising from ‘so many parties in disparate locations, and with different terms and conditions of employment over Skype’. Bolton Clarke’s proposal for a national agreement ‘complicates the negotiations’. The result is ‘almost blanket derogation of conditions… no wage proposal’.68 He said that there has been an ‘overwhelming response from staff who are unhappy with the [employer] proposals’, and it is difficult to meet with staff.69 He said that ‘ring fencing’ the RDNS conditions would be a ‘wage freeze and a derogation of conditions for 900 employees’, and unfair with some employees doing the same work with different wages and conditions. There are no improvements but for five days domestic or family violence leave.70 Members want to achieve the ‘more standard Victorian conditions contained in the RDNS Agreement’.71 He said that the ‘primary position of ANMF members is simply maintenance of current conditions in the RDNS agreement to apply to all Victorian employees, and to maintain the pay parity we have historically had with the public sector’, which would help recruitment.72 Mr Herbert cross-examined Mr Hoover on his evidence.73
[24] Mr Luke Smeaton gave evidence on his view of the bargaining meetings for the proposed enterprise agreement. He said that he ‘attended most of the bargaining meetings’. 74 He said that ‘every bargaining meeting has had a significant number of participants only able to participate by phone or video conference’.75 He gave evidence on the difficulties encountered with the technology at the meetings with ‘either technical problems including excessive noise … various video or audio facilities dropping out … difficulty of identifying who is speaking’.76 He acknowledges that Bolton Clarke did agree to a framework for discussions at the meetings however ‘this was only adhered to for one or two meetings’.77 He also said that the large number of participants at each meeting created additional issues to the meetings proceeding efficiently. Mr Herbert cross-examined Mr Smeaton on his evidence. The cross examination of Mr Smeaton included questioning on the reason for the application being brought before the Commission:
“… Did you bring a bargaining order application to the Commission saying that bargaining - the employer's not bargaining with you fairly? Have you brought any such application at that time, good faith bargaining order?---No, we have not.
Well that's your remedy isn't it under the Act? It's an available remedy?---That's true.
But you didn't do it?---Well we also thought that the scope order, if it was made, would also provide us with that opportunity…” 78
[25] Ms Elizabeth Perdomo gave evidence about the Homeless Persons Program (HPP), 79 and the current negotiations.80 She said that problems with negotiations included significant differences between these and previous negotiations including the ‘number of attendees at each meeting … about 60 people’, meaning ‘very little if any progress is being made’, ‘meetings are carried out by telephone and/or videoconferencing’, management is ‘based in Queensland and have limited knowledge’ about Victorian work or terms and conditions, and significant time is spent discussing issues relating to other States, leaving others with little to contribute. A Victorian agreement ‘would progress much faster and be significantly more relevant to the workforce’, and Victorian staff have not had a pay raise for over 18 months, and may not receive one during the life of a new agreement. Many members have said that residential aged care appears to be the employer priority.81 Ms Perdomo was cross-examined by Mr Herbert on her evidence.82
[26] Ms Karynne Ann Paull gave evidence about her resident care duties, and the nature of Queensland work, and Bolton Clarke residential aged care facilities in other States, as well as opportunities for Registered Nurse (RN) work in Queensland being ‘very limited’. 83 Mr Herbert cross-examined Ms Paull on her evidence.84
[27] Mr Andrew John Brakey gave evidence about Tasmania, and says that Ms Reid has ‘informed me’ about difficulties with negotiations, which are listed. 85 However this evidence appears to be hearsay, and I am unable to give it much weight.
[28] Ms Patricia (Trish) Marjorie O’Hara gave evidence in reply to Ms Deirdre McGill, Ms Fiona Hearn, and Mr James Toohey to ‘define, describe and differentiate the roles, function and specializations in nursing practices’, 86 dealing with the NMBA,87 the role of community nurse/district nurse,88 the role of legislation and skills required,89 the differences between community and residential care nursing and other matters,90 the NMBA,91 the differences between nursing in the different States,92 and various observations about the responsibility of nurses.93 Mr Herbert cross-examined Ms O’Hara on her evidence.94
Employer evidence
[29] According to the minutes of the meetings attached to the witness statements of Ms Janene Rodgers, the course of negotiations proceeded as follows:
1. 30 August 2018, parties commence negotiations in Brisbane, the ANMF attends. All parties will present logs of claims at the next meeting; 95
2. 25 September 2018, Brisbane, Bolton Clarke log of claims proposing national agreement discussed, ANMF national agreement discussed ‘for a Victorian agreement which covers all Victorian employees, to maintain Victorian entitlements as per the RDNS Agreement for all Victorian employees, and improve aspects of the current terms and conditions, OHS and professional standards’; 96
3. 4 October 2018, Melbourne, Bolton Clarke advises that it would extend the coverage of the Bolton Clarke Enterprise Agreement 2018 beyond those covered by the RSL and RDNS agreements; 97
4. 1 November 2018, Brisbane, Bolton Clarke advises that its proposed national agreement wold ‘replace all current agreements’, ANMF advises that it ‘seeks a Victorian only agreement and presented the ANMF Victorian Log of Claims as per the documents found in the Zip folder…’; 98
5. 13 November 2018, Brisbane; 99
6. 27 November 2018, Brisbane, ANMF has ‘concerns with regard to the size of the bargaining group and requested that Bolton Clarke prepare a document, which will ensure efficient responses to all LOC ... Action: Bolton Clarke to prepare LOC comparison document categorising items for ease of reference and response’; 100
7. 11 December 2018, Melbourne; 101
8. 18 December 2018, Melbourne, debate on RDNS agreement, and ANMF position outlined; 102
9. 8 January 2019, Brisbane, ‘Bolton Clarke to send out comparison document 1 week before next meeting dated 5 February 2019’, Bolton Clarke draft national agreement terms discussed; 103
10. 5 February 2019, Melbourne, list of discussion points, discussion of draft clauses of the Bolton Clarke Enterprise Agreement 2018 clauses; 104
11. 19 February 2019, Brisbane, discussion of the Bolton Clarke Enterprise Agreement 2018, video conferencing drops out for 15 minutes; 105
12. 5 March 2019, Melbourne, discussion of Bolton Clarke Enterprise Agreement 2018. 106
[30] Ms Janene Rodgers gave evidence about the five enterprise agreements that cover employees of Bolton Clarke, the numbers of employees in each State, and events during bargaining. She said that the effect of ‘grandfathering’ of the RDNS agreement would mean that 11 per cent or 102 employees of 923 covered by the RDNS agreement would not receive a wage increase, while 663 would receive one, and other details. 107
[31] She said that at meeting eight, discussions occurred about the ANF Log Analysis Document, and in particular Ms Reeve asked whether the attached RDNS agreement could be improved. 108 She said that despite Bolton Clarke’s intention to have a single uniform agreement it had taken account of the Logs of Claims and had agreed to ‘ring-fence’ the RDNS agreement.109
[32] She said that after the meeting Bolton Clarke agreed to revert all changes in the ‘ring-fenced’ RDNS agreement to those terms in the RDNS agreement, 110 noting the earlier dispute about the dispute settlement and consultation provisions in the RDNS agreement and the abandonment of proposals to change them.111
[33] She gave evidence that at meeting nine the ANMF attempted to add additional entitlements to the RDNS annexure to the agreement, and this was rejected. 112
[34] She said that Bolton Clarke decided to cease bargaining after an attempt to arrange a further meeting. She said that the ANMF refused to ‘consider the rationale Bolton Clarke gave, and continued to make claims that simply could not be accepted by Bolton Clarke without risking the financial viability of the business’. 113
[35] She said that Bolton Clarke ceased bargaining because ‘the parties had exhausted the possibility of coming to agreement … the logistical issues … were no impediment to bargaining and were not instrumental ... the sole reason … was because of the issues referred to in paragraphs 47 to 50 above and the parties have reached an impasse’. 114
[36] She said that the RDNS Annexure mistakenly included the two model clauses and would be amended. 115 She attached the agreement that Bolton Clarke intends to put to ballot, subject to the Commission decision,116 and other matters such as minutes and correspondence. Mr White cross-examined Ms Rogers on her evidence.117
[37] Ms Megan Zoy Millman gave evidence about the care programs provided by Bolton Clarke, and their funding arrangements, including Commonwealth Home Support Program, Home Care Packages, HACC services, Department of Veteran’s Affairs Community Nursing and Veterans Home Care, and fee for service. 118
[38] Ms Fiona Louise Hearn gave evidence about the merger of RSL Care and RDNS, the funding structures, and nursing at Bolton Clarke. She said that Bolton Clarke in Victoria would ‘rapidly move away from an almost exclusive focus on clinical nursing services and to diversify the aged care service offering to include a wide portfolio of services’. 119 She said that there ‘is nothing inherently different between registered nurses providing clinical care in Victoria compared with the clinical care provided by nurses to an aged care cohort in Queensland that would explain significantly different terms and conditions of employment’.120 Mr White cross-examined Ms Hearn on her evidence.121
[39] Ms Deirdre Anne McGill gave evidence that Bolton Clarke is a not-for-profit business and its funding sources, 122 service delivery in Victoria, which is different to other areas of Bolton Clarke because of the CHSP agreement with the Commonwealth Government,123 and other funding issues. She replied to Ms Reeve’s evidence124 by stating that there is no difference between the complexity of care delivered by Bolton Clarke nurses in Victoria and the care delivered in Queensland,125 and other matters.
[40] Mr Everett Claudio McIvor gave evidence that the meeting minutes were a true and accurate summation, and replied to Ms Reeve’s evidence about a number of meetings. He also replied to Ms Perdomo, Mr Hoover, Ms Holland, and the overall progression of negotiations. 126 Mr White cross-examined Mr McIvor on his evidence.127
[41] Mr James Patrick Toohey gave evidence about funding models for care at home, residential care, CHSP, and RDNS, which was the primary recipient of HACC funding in Victoria, and current funding of RDNS. He said that CHSP will expire in 2020, and it is unclear what funding will look like after that. 128 He replied to Ms Reeve’s evidence, and that of Ms Holland, and Mr Hoover. Mr White cross-examined Mr Toohey on his evidence.129
Consideration
[42] I am satisfied that the requirements of s.238(1) are met, and indeed this was not challenged. The applicant has concerns referred to in s.238(1). 130 No single interest employer authorisation is in place (s.238(2)). I am satisfied that the requirements of s.238(3) are met.131 Did the ANMF meet the good faith bargaining requirements within s.238(4)(a)? In my view it did, for reasons set out below.
Fair and efficient bargaining – s.238(4)(b)
[43] In UFU v. MFESB 132 a Full Bench of the Commission said:
“[55] The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were made.”
[44] In ANMF v. Hammond Care 133 a single member of the Commission considered a matter in which employees were employed under the relevant modern award, not an agreement, and were bargaining for an agreement. The Commission made an order in the circumstances before it and said:
“[8] In December 2014, when HammondCare started employing staff in Victoria, the employees were informed about their relevant modern award and that HammondCare had agreed to apply above award conditions derived from the two New South Wales agreements.
[…]
[121]Given the circumstances of this matter, bargaining would be fairer if an order is made as Victorian employees will have an opportunity to bargain in the context of Victorian industrial history as opposed to New South Wales industrial history. This is particularly relevant as, technically, Victorian employees’ wages and conditions are in accordance with the relevant modern awards. HammondCare has, however, made a policy decision to extend the New South Wales agreements’ terms and conditions to Victorian employees. It would be fairer to Victorian employees if they were able to negotiate a new (first) agreement with HammondCare which was in the context of the particular industrial landscape that prevails in Victoria in the private aged care sector.
[122] I have also formed the view that bargaining would also be fairer if an order is made as this would ensure that the interests of Victorian employees are not subjugated by the interests of the New South Wales employees. On weighing up the evidence on this aspect of the matter, it is my view that it is reasonable for Victorian employees and their bargaining representatives to be concerned that their interests may be subjugated to those of their New South Wales counterparts. The mathematics of the relative numbers of employees, which was not contested, would support this concern - New South Wales employees outnumber Victorian employees by 5 or 6 to 1.”
[45] How did the bargaining proceed? The bargaining representatives met on twelve occasions, and discussed and considered each other’s negotiating positions. Ms Reeve and other ANMF witnesses were critical of the negotiation process in a number of respects, and I have taken account of all the evidence given, some of which is referred to earlier. These concerns included firstly communication difficulties resulting from technology and the interstate nature of the negotiations, and the large number of parties, secondly the complexity given the different conditions of employment applying and relevant to a national agreement, thirdly the generally applicable nursing conditions applying in Victoria, fourthly, the way in which Victorian nurses can be outvoted in a national agreement on their own particular conditions, fifth the failure to make detailed comparisons between proposed clauses and existing clauses and, the shortness of discussion on those issues, six the lack of knowledge of representatives which limits progress, seventh that the ANMF has to bargain from a lower base than currently applies, and other issues. In the view of the ANMF the making of an order would cure these and other difficulties. Finally the ANMF were critical of the decision of Bolton Clarke to terminate discussions, and submitted that this coincided with the termination of the RSL agreement.
Communications
[46] In relation to the first issue, communications, I accept that on occasion there were some technological difficulties, and difficulties in identifying who was speaking, and other difficulties such as video conferencing dropping out, and I note evidence from the ANMF witnesses to that effect.134 There were nine unions involved. 135 Mr Everett McIvor gave evidence about the bargaining process, from meeting one on 30 August 2018 through to 5 February 2019. He said that the negotiations had difficulties but proceeded in a ‘timely and efficient manner’.136 Mr McIvor said that the ANMF gave a ‘lengthy and very comprehensive’ presentation compared to other unions on 25 September,137 Ms Reeve ‘spoke at length’ on 1 November 2018,138 Ms Reeve spoke about the RDNS agreement Annexure,139 a large amount of the conversation on 18 December 2018 was ‘about the annexure to the BCEA’, Ms Reeve was given ‘plenty of opportunity to speak during the meetings and that it would be fair to say she has been the most vocal bargaining representative during the negotiation meetings’,140 on 5 February 2019 the ANMF presented a draft agreement.141 Mr McIvor said, for example, that he does not recall the twenty times video conferencing dropped out that Ms Reeve referred to, and that this estimate was ‘excessive’, and he recalled one dropout, and that videoconferencing ‘made for an easy flow of information and I did not perceive any problems in relation to the flow of negotiations’.142
[47] Ms Rodgers gave evidence that no party other than the ANMF has expressed any technical issues or difficulties with Skype or teleconferencing, and the ANMF had by far the largest contingent of representatives and could have limited it to the level of other parties. She gave evidence that the ANMF was ‘more vocal than any other bargaining party’, and ‘the ANMF were afforded the most time of any other bargaining party’. 143 Ms Rodgers gave evidence about the negotiation process on 19 February 2019, and it was clear that the ANMF was able to put views and did so. It was clear what the ANMF sought from negotiations. During cross examination, Ms Reeve gave evidence that:
“It's a significant period of time and nobody involved in those negotiations could have been under the faintest misapprehension as to what your very firm position was?---Yes, but I don't think that they necessarily understood all of the elements of what that meant. That certainly was a view that we formed throughout the negotiations.” 144
[48] It may be true that there was debate to be had about each of the Victorian conditions or other matters, but Bolton Clarke were well aware of and unwilling to accede to the ANMF claim for the Victorian conditions and a separate Victorian agreement, and appeared to be little interested in an agreement of that kind even with minor or more modifications to Victorian conditions. The employer eventually in January 2019 responded to their position with a compromise offer, namely the RDNS Annexure. I also note that the ANMF was less impeded during the many meetings held in Melbourne, which may have been at the ANMF offices. The last meeting on 5 March 2019 was held in Melbourne, thus avoiding the alleged difficulties regarding Skype and technology at least for the ANMF, and at that meeting discussed the BCEA draft, the ANMF response regarding wages, Single Night Duty Allowance and consultation and organisation change provisions, and Ms Reeve sought to have additional entitlements applied to the RDNS Annexure. This was rejected, and Ms Reeve raised the issue of a regional consultative committee provision. Attempts were made to arrange a further meeting date but these were unsuccessful.145
[49] I had the opportunity to observe witnesses giving evidence and prefer the evidence of Mr McIvor and Ms Rodgers. There may have been difficulties in communications, but not to the extent of preventing bargaining occurring efficiently and effectively. There were numerous meetings, a regular exchange of positions, a regular exchange of documents and information, concessions made, although perhaps less so on the part of the ANMF. Discussions took place about the respective positions of the employer which wanted a national agreement with common conditions, and the ANMF which wanted a separate Victorian agreement containing the Victorian common conditions.
Complexity
[50] Secondly the ANMF raised the issue of complexity given the different conditions of employment applying and relevant to a national agreement. They complained that a comparative table of conditions was not prepared as undertaken by the employer, and this impeded negotiations. At the 27 November 2018 meeting the employer undertook to ‘prepare a comparison document categorising items for ease of reference and response’. 146 At the 8 January 2019 meeting the employer undertook ‘to send out comparison document 1 week before next meeting dated 5 February 2018’ [ie.2019].147 Ms Rodgers gave evidence that this was not done because ‘we did have staffing restraints at the time. So we’re a very lean team, there were two of us doing it, all the preparations for the negotiations … so it was a case of complexity, time and also getting an understanding of what it is that everyone wanted’.148 I accept this explanation. However a comparison of the Logs of Claim was prepared and circulated on 15 February 2019.149 I also note Ms Rodgers’ answer to my question that circulation of that document did not make much difference ‘in forwarding negotiations’.150 I also note that some discussion took place on a broken shift clause, annual leave, and other conditions at the 5 March 2019 meeting.151 Even if the comparison document had been prepared, the evidence of the comparison of logs document would suggest that it might not have made necessarily much difference. The Log of Claims document did not. The totality of the evidence suggests that the employer was legitimately able to make the conclusion that it did on the developments to date.152 The position of the employer and the ANMF was in general terms clear, and given those positions it is understandable that the employer would not see any merit in further discussions of that nature. I also accept that there are limits of the capacity of the employer to prepare such a document, and that there are priorities. It is also the case that there will be complexities of this nature in an attempt to develop a national agreement. It cannot for example be the case that the Commission must conclude that an order be made to avoid all national agreements introducing common conditions in favour of simpler local agreements. The negotiations proceeded fairly and efficiently.
Victorian conditions
[51] A third concern was the generally applicable nursing conditions applying in Victoria, and fourthly, the way in which Victorian nurses can be outvoted in a national agreement on their own particular conditions. In my view, similar to those of Commissioner Cribb, 153 there is a high degree of commonality in conditions in Victorian nursing agreements. This appears to be a matter of agreement given the lack of challenge to Ms Reeve’s evidence on this point, noting for example that ‘wages are somewhat less standard’.154 It is however open to an employer to seek a national agreement with nationally common conditions, and this is what the employer did, perhaps building on the RSL agreement under which a significant number of Victorian employees worked. The suggestion that the bargaining is fairer if it is the employees who have enjoyed those terms and conditions who make the decision about whether or not to relinquish them is largely met by the employer in this case by a ‘grandfathering’ approach. The result of the negotiations was that the employer drafted a national agreement which included the RDNS agreement as an Annexure, so that the RDNS agreement was preserved in full. Ms Rodgers made it clear that this included a concession to the ANMF demand that the dispute settlement procedure and consultation clause of the RDNS agreement be retained.155 Ms Reeve refused to agree that this was a ‘good result’, but did agree that she was ‘pleased’ that entitlements were not lost.156 There is then a different circumstance to Hammond, in which employees could lose Victorian entitlements in full by a majority vote of a much larger group, rather than a vote by Victorian employees. In this case a national vote will not mean that Victorian employees will lose their Victorian entitlements under the Victorian agreement, although new employees will not gain Victorian entitlements. The various observations about fair bargaining processes made in Hammond are therefore in my view met. That decision was in relation to a group of employees employed under the award, not under enterprise agreements. It was also necessarily expressed to be a decision on the particular circumstances of the case. This also supports my view that the parties have bargained in good faith. There will now apparently be a vote on the national agreement and the ANMF workers are not voting on losing entitlements for the most part, although the RDNS Annexure is not all that it seeks. For example, it does not apply to workers who change jobs, or to new employees, only to those with the current entitlement. Nevertheless, in my view these are not sufficient grounds to conclude that bargaining is not proceeding efficiently and fairly. Apart from this issue of a fair process, the content of bargaining proposals is a matter for the parties not the Commission,157 and I do not have regard to content apart from that. The parties put considerable work in to for example, producing analyses of the wage increases that would be received under the proposed national agreement including by RDNS covered employees. Naturally they appeared to differ in their estimates. While many RDNS employees would receive some wage increases this may not be relevant. The employer proposal for a national agreement continues the current two tier structure, with RDNS covered employees and others. In my view this does not impact on the fair and efficient bargaining, because an attempt has been made to ‘grandfather’ and produce a fair bargaining process, and which increases not decreases the fairness of the bargaining process, because Victorian employees will not be outvoted by a national vote and so lose their Victorian common conditions. It is legitimate for the employer to make a concession and offer to continue to apply Victorian common conditions to those currently receiving them, even if this does continue on a ‘two tier’ structure. I have taken into account all the submissions and evidence relating to the operation of the current two tier structure, and I do not accept that this is currently causing difficulties which should lead me to conclude that the granting of the order would lead to more fair and efficient bargaining.
Detailed comparisons
[52] There were also a number of concerns about the employer failure to make detailed comparisons between proposed clauses and existing clauses (dealt with above), the shortness of discussion on those issues, the lack of knowledge of representatives which limits progress, and that the ANMF has to bargain from a lower base than currently applies, and other issues. I accept that some representatives might not be fully aware of for example, Victorian conditions, and that the ANMF was confronted with an attempt to bargain to some extent using the RSL agreement as a base. However the RSL agreement is an approved agreement, and some Victorian employees have worked under it for some time, and many more in NSW. As I discuss later there is no intrinsic reason why the employer should not be able to use that agreement as the basis for its proposals for a national agreement. Similarly lack of knowledge is often a problem, and that is why it is important that there is discussion and an exchange of views and documents.
Work in Victoria
[53] It is also the case, as many witnesses made clear, that the work of the employer is to some extent different in Victoria from other states. It may be the case that as Ms Hearn said that there ‘is nothing inherently different between registered nurses providing clinical care in Victoria compared with the clinical care provided by nurses to an aged care cohort in Queensland that would explain significantly different terms and conditions of employment’. 158 I also note the evidence of Ms McGill in reply to Ms Reeve’s evidence159 stating that there is no difference between the complexity of care delivered by Bolton Clarke nurses in Victoria and the care delivered in Queensland,160 and other matters. There may be differences arising from different equipment and techniques, and ‘it is difficult to say that one size fits all’.161 There may be some differences arising for example from a higher ‘degree of independence and autonomy’ of district nurses who work out in the community rather than in an aged care facility.162 Also, it may be that there is more complexity now in aged care work.163 Nurses have to respond to the medical condition of the patient wherever the patient is, conditional entirely on the nature of the condition not where they are.164 Nevertheless this does not mean that the negotiations did not proceed fairly and efficiently, because Victorian conditions are not applied to others working as District nurses in Victoria or elsewhere, and there is little connection between the two. This does not mean that Victorian terms and conditions in agreements are inappropriate. It just means that there is a somewhat different industrial history.
Bargaining in good faith or appropriately
[54] The employer and the ANMF accuse each other of not bargaining in good faith, or appropriately. The employer submits that the ANMF only engaged in ‘surface’ bargaining. In relation to the ANMF conduct, the ANMF relies on the evidence of Ms Reeve, and on an email from Ms Reeve dated 13 November 2018, 165 in which she suggested that the claims be ‘grouped by subject matter so that they can in the first instance be compared and contrasted against each other and also considered in light of existing conditions applying to Bolton Clarke employees around Australia’. This is in my view evidence of bargaining. Further, a comparative document was not provided until 29 January 2019, and then it is agreed on Ms Reeves’ suggestion that the negotiations proceed by way of a list of particular conditions and items.166 This again suggests good faith bargaining. I have had regard to all the evidence and in my view the ANMF bargained in good faith. They attended meetings, made presentations, responded to the proposals of others, and generally sought to bargain, although in a somewhat firm and uncompromising fashion. They made no concessions for example towards the employer proposal for a national agreement based on the RSL agreement, nor is there any obligation on them to do that.
[55] The employer submitted that it undertook all the requirements set out in s.228, although there were some areas of debate and discussion. For example it was agreed that a Log of Claims was produced and discussed, but Ms Reeves said it was not discussed in whole, and other matters. 167 However, the employer attended and participated in meetings at reasonable times, namely twelve meetings which have been discussed, disclosed relevant information such as its rationale including financial rationale for the national agreement, responded to proposals (eg. by offering the RDNS Annexure in response to the ANMF proposal for a separate Victorian agreement with common Victorian conditions), gave genuine consideration to the proposals of other bargaining representatives (eg. and then offered the RDNS Annexure in the case of the ANMF), refrained from capricious or unfair conduct (eg. through its statement of ‘the process’ for bargaining,168 which included minutes, an agenda, drafting of a new agreement, how people will treat each other), and recognised and bargained with other representatives including some nine unions during twelve meetings and through correspondence and other discussions. Overall for these reasons, and reasons set out elsewhere in this decision, I am not satisfied that there was a deficiency in the employer bargaining steps taken which leads me to conclude that the bargaining was not efficient or fair, or that granting the order would make the bargaining efficient and fair.
Commencement of bargaining
[56] The ANMF said that the employer refused to bargain by May 2018 as required by the RDNS agreement. However on 29 May 2018 the employer sought to delay bargaining and did not simply refuse to bargain. The employer said that there were appeal proceedings underway and ‘we assert that the parties are unable to determine which employees will be covered by any replacement agreement until the Appeal has been heard and determined’, and said ‘we seek agreement to delay discussions until the Appeal outcome is determined’. 169 The ANMF replied on 12 April 2018 stating that the proposal for delay ‘is not acceptable’ for ‘at least’ a number of reasons which were stated.170 There was no reply and the ANMF did not write again until 19 June 2018 when Ms Reeve wrote asking to discuss the correspondence.171 No reason was given by either side for this two month delay between 12 April and 19 June. For example the ANMF could have written a further letter if it wished or sought a meeting to discuss the correspondence, and on the limited material available it appears that the ANMF and Bolton Clarke disagreed about whether or not bargaining should be delayed in all the circumstances. An ‘agreed meeting’ needed to be postponed,172 and on 3 July 2018 Ms Reeve wrote again asking whether Bolton Clarke had agreed to commence negotiating a new agreement for Victorian employees separately to Queensland employees, and if a NERR had been issued.173 Ms Reeve and Ms Rodgers met on 18 July 2018 and Ms Rodgers ‘confirmed Bolton Clarke’s position that it wished to negotiate a national agreement’ and ‘were not yet willing to commence negotiations’. I confirmed that ANMF wished to commence negotiations as soon as possible given the nominal expiry of the RDNS Agreement and wished to negotiate a stand-alone Victorian agreement’.174 A month later on 17 August 2018 Bolton Clarke issued a Notice of Employee Representational Rights.175
[57] It is true that the appeal proceedings could conceivably have affected relevant matters such as coverage of the RDNS agreement. The employer was entitled to raise that as an issue and propose that bargaining over coverage be deferred because it was the subject of legal proceedings, or that any position it provided was interim only pending the outcome of the appeal, or something similar, although the requirement in the agreement to commence bargaining raises difficulties. I note that good faith bargaining refers to meeting ‘at reasonable times’ (s.228(1)(a)). Such times would be influenced by the requirement to bargain in the RDNF agreement, and also having regard to related proceedings such as an appeal which affects a fundamental issue between the parties such as coverage. If there is a breach of good faith bargaining requirements by Bolton Clarke it is of a relatively technical nature, and I note that the ANMF may also have contributed to the delay by not raising the issue again between April and June 2018.
Termination of bargaining
[58] In relation to the ANMF complaint that the employer terminated negotiations and decided to put its draft national agreement to the vote, the bargaining representatives received an email from Bolton Clarke dated 13 March 2019 which stated that Bolton Clarke had considered each log and responses to the Bolton Clarke proposed agreement, and provided a response to that material. Bolton Clarke said that this was the ‘final offer in these negotiations for a national agreement’, that no further financial concessions would be made, and that Bolton Clarke ‘would proceed to a ballot’. 176 Ms Reeve and others complained about this stating that the ANMF and other bargaining representatives ‘had a clear expectation that further meetings would be scheduled’.177 She criticised employer attempts to organise another meeting, and other bargaining representatives responded negatively to the email stating that a further meeting had been agreed and similar claims. The ANMF submitted that this discussion was foreshortened by the employer terminating negotiations and deciding to put the draft national agreement to a vote.178 The ANMF submitted that logs of claims were still being presented as at 13 November 2018, and only three months later negotiations were terminated.’179
[59] Ms Rodgers gave evidence in relation to the termination of bargaining by Bolton Clarke that:
“It was around the efficiency of the process and that we were going around and around in circles with no agreement, no movement, and if we continued to do that the feeling of the Bolton Clarke bargaining representatives was that we would be in bargaining for a good 12 months further.” 180
[60] She said that:
“[47] Throughout the bargaining process, Bolton Clarke has continued to negotiate with the bargaining representatives and make concessions regarding logs of claims and requests. However, throughout the bargaining period the ANMF has remained unwilling to make any or any significant concessions. We have continued to make allowances to requests from the unions, explain our rationale for decisions and be transparent regarding costings and operational requirements.
[48] We have also been upfront with the bargaining representatives about the funding and financial position of Bolton Clarke, and that we are attempting to create a sustainable agreement for all parties. Despite all of this, the ANMF have been unwilling to consider the rationale Bolton Clarke gave, and continued to make claims that simply could not be accepted by Bolton Clarke without risking the financial viability of the business. During the course of bargaining, union representatives and delegates have gone as far as suggesting that Bolton Clarke ought to take out loans, shut down facilities or sell assets to secure more funding for employee entitlements. Plainly this was regarded by Bolton Clarke as unacceptable.
[49] Meetings have ceased progressing and instead parties continue to go over matters that have already been discussed and explained. The unions would not consider our responses and rationales detailing Bolton Clarke’s financial and operational constraints.
[50] Bolton Clarke considered the results of the ‘Doodle Poll’, the lack of progression in bargaining meetings, the consideration of the bargaining representatives’ responses and the inability for it to make any further concessions regarding entitlements that would financially detriment the business. On 11 March 2019, Bolton Clarke decided to cease bargaining for the BCEA and to put the BCEA to the employees.
[51] After Bolton Clarke’s extensive efforts to reach agreement with the bargaining representatives, as set out in my former statement and this statement, negotiations came to a natural conclusion because the parties had exhausted the possibility of coming to agreement. The logistical issues referred to in the Applicant’s witness statements (i.e. the number of attendees and videoconference challenges) were no impediment to bargaining and were not instrumental in Bolton Clarke making the decision to cease bargaining for the BCEA. The sole reason why Bolton Clarke decided to cease bargaining and put the BCEA to ballot was because of the issues referred to in paragraphs 47 to 50 above and the parties having reached an impasse.” 181
[61] She also gave evidence that:
“So what I want to suggest to you is this: had Bolton Clarke done what it agreed to do, the negotiations would have taken much longer, wouldn't they? --- They would have, because we were going around in circles. There was no genuine - my belief, my personal opinion, is that there was no genuine attempt at negotiation with the intent to actually reach agreement. We were conceding every single meeting there was another concession that the Bolton Clarke team were making, and there was no movement at all from the union”. 182
[62] The minutes shows that there was discussion of a number of conditions on 5 March 2019 including annual leave, broken shift, continuous service, consultation dispute resolution, minimum hours, notice period for casual employees, rest pauses, meal breaks, Appendix C, Annual Leave Loading, compassionate leave, workloads, union delegate leave, movement between pay points within a classification, translation, term of agreement, definition of shift worker, time off in lieu, medical certificates, domestic and family violence leave, stand down, wages, consultation/organisational change. 183 These discussions are also relevant and show that the discussions included this level of detail, even if the full range of detail was not addressed.
[63] There was no obligation on the ANMF to make concessions. In relation to whether or not the ANMF made concessions, Ms Reeve gave evidence that:
“Your Honour, we haven't come to any formal point of reaching concessions. We had spoken to the employer about personal leave. We were willing to discuss with them ways in which to tighten that if they thought the Victorian standard was a problem because it is higher in Victoria - in the Victorian health industry than it is in other areas of Australia. So it was a discussion that we were prepared to have and were planning on having in the context of the negotiations subject matter - on that subject matter.
Right, so you would have made compromises on individual conditions possibly? --- Yes, possibly.” 184
[64] Ms Reeve was asked if the bargaining was efficient in that the ANMF secured concessions from the employer in the form of the RDNS Annexure, which preserved Victorian conditions under the RDNS agreement for those who had them (unless an employee changed jobs), and which provided for wage increases for RDNS employees during the life of the agreement. She gave evidence that:
“And successfully, securing a significant number of concessions from the employer?---No, I wouldn't say successfully.
You secured a significant number of concessions for employees?--- To the extent that our members who are currently employed on the RDNS agreement have now at the end of this process we understand retained that agreement.
MR HERBERT: In accordance with your own evidence you did all of that despite the inefficiencies in the process? Do you accept that's what you say?---Yes, well that was what was proposed to us, yes.
So the inefficiencies in the process that you've described at great length in your evidence didn't prevent you from bargaining in good faith and bargaining professionally and I suggest to you successfully?---Well not as successfully as we would have liked to have been able to bargain and achieve the fair outcome that we were trying to achieve across Victoria.” 185
Conclusion on termination of bargaining
[65] There is force in the employer submission that the RSL agreement is an ‘equal contender’ in future regulation, because the employer actually made it rather than inheriting it, and there are a large number of employees working under it in Victoria and even more so nationally. 186 The employer submitted that it was seeking a national agreement with common conditions similar to the RSL agreement which covers 80-90 per cent of its employees, and to extend this is ‘the most logical thing in the world to do’.187 The employer also raised significant cost issues with the union approach, in the order of an extra $93 million if those claims are correct, although they were contested by the ANMF. Ms Rodgers gave evidence that the ANMF and QNMU’s claims were ‘not economically or operationally sustainable’.188 These are legitimate concerns of an employer, and it was entitled to raise them and act on them as it did on the material before me, without detracting from fair and efficient bargaining.
[66] The employer also submitted that there was no instance of industrial disruption arising from the long operation of the two agreements with different conditions. 189 The employer also submitted that a result of telling others that they will have to accept Victorian employees getting more than NSW employees just because you work in Victoria is somewhat artificial, as opposed to its ‘rationale which employees and Australians generally tend to accept’ of allowing employees to preserve existing entitlements and not have them removed.190 The employer submitted that the ANMF ‘wanted a Victorian only agreement and that’s all they were going to accept, nothing less’. They had made no concessions, even though they didn’t have to.191 It submitted that the ANMF made this s.238 application on 4 December to remove the possibility of a national agreement, and from that date they seriously intended or never had ‘the faintest intention of doing anything other than having a Victorian only agreement’.192 The employer submitted that being fair to Victorian employees is not the same thing as fair bargaining, and ‘nobody is taking any unconscionable advantage of anybody else in relation to these processes’, as the employer has chosen the RSL agreement to be the vehicle and to preserve the minority entitlements of some Victorian employees,193 and we had to look at all employees because not to do so ‘will unravel potentially the negotiations that have occurred for the rest of Australia’.194 It submitted that fair negotiations is not just about Victoria, but is also about the employer, and the order would make it ‘effectively vastly more difficult if not impossible for the employer to then attain a national objective for the company …. would make the rest of the workforce much less able to be dealt with unless and until the Victorian situation had been settled and everybody knew what they were all going to get because they lived in Victoria, it may well be that bargaining will grind to a halt which would be grossly unfair to the employer …’.195
[67] It submitted that nurses will get an increase the day that the national agreement is approved, which is the RSL agreement 80 per cent, and we have to look at all employees not just RDNS employees, and ‘this process is holding up everybody else’s pay increases as well and that is unfair to everybody else..’. 196 We should not entrench conditions in one state, or allow a proxy for the s.319 proceedings. The employer also raised funding issues.197 Even with the RDNS agreement alone on the evidence of Ms Perdomo this took six to eight months to conclude an agreement.198 Even if an order is made there is no reason to believe that suddenly efficiency will break out, and that either party will change their thinking about a national as opposed to a Victorian agreement.199
[68] There is substantial force in these submissions. It is legitimate for an employer to raise and pursue a national agreement based on the RSL agreement after the negotiations already discussed, and for the ANMF and others to resist this or seek a stand-alone Victorian agreement given the industrial history in Victoria, which is also a legitimate consideration. The fact that Bolton Clarke and the ANMF are in disagreement does not mean that negotiations were not proceeding efficiently and fairly. I accept that it was a legitimate decision in these circumstances for the employer to terminate negotiations and decide to put the national agreement that it had drafted to the vote of employees. I accept the evidence given by Ms Rodgers. The employer was entitled to conclude what it did on the evidence before me. The ANMF did not agree to a national agreement, and there was little or no sign that it would ever agree, and it was not obliged to agree. All the evidence suggested that it would not for reasons it cogently advanced, as was its right. The claimed willingness to negotiate over Victorian conditions was accompanied by a strong support for retention of those conditions. The ANMF made it clear on all occasions that it sought a stand-alone Victorian agreement, and made no concessions on that point, or any concessions at all. It was not obliged to make concessions, but the employer was entitled to react as it did to the ANMF conduct of negotiations. The negotiations were terminated but were not incomplete from the employer point of view, which is a legitimate point of view, although they were from the ANMF point of view, which is also legitimate but is not determinative in this case when the position of each party is taken account of. The employer is not required to bargain on an ongoing basis in the face of lack of progress from its point of view, or as much progress as it can reasonably expect, and has engaged in a reasonable period of bargaining which gave all parties the opportunity to put views, and to respond, and to have responses from the other side, and other bargaining matters. It is understandable that the ANMF disagrees with the employer response to its relatively firm or even ‘hard bargaining’ approach on issues such as a Victorian agreement and Victorian common conditions, but issues of fairness arise on both sides. The employer had made the substantial concession to the industrial history in Victoria by offering the RDNS Annexure, which preserved Victorian common conditions for those receiving them. Without that it may be that there would be a serious problem with the employer approach in terms of the fairness of bargaining, but in this case it has made a substantial concession to the Victorian industrial history which is relevant, and must be given weight.
[69] The ANMF complained that the termination coincided with the termination date of the RSL agreement on 21 March 2019. 200 I am not convinced that this decision making process can be inferred from the process of negotiations, namely that there was a deliberate decision to structure negotiations around the RSL agreement expiry date. The employer decided, given the approach to negotiations by the ANMF that it would cease bargaining and put an agreement to the vote. Even if there was some strategy of that kind it is a legitimate strategy to pursue a national agreement based on the RSL agreement.
[70] It is true that there was only some discussion about individual conditions, and Ms Reeve gave evidence that the ANMF might have made some possibly limited concessions on those if negotiations had not ceased. The ANMF did make it clear that it was a strong supporter of retention of the Victorian conditions. It would presumably be difficult to reconcile that strong support with it agreeing to radical or even substantial changes to Victorian conditions, even if the employer was interested in such changes rather than a national agreement with common conditions, which it was apparently largely not. In fact the employer was seeking a national agreement with different conditions, and then compromised because of the ANMF position. In those circumstances the employer was entitled to respond to that as it did, and decide to put the agreement to the vote with a significant employer concession of the RDNS Annexure. In relation to the argument about complexity resulting from a national agreement, it also appears that for example the negotiation of the RDNS agreement was a complex affair. It is also the case that this argument can be made about nearly any national agreement, and national agreements can be a legitimate response to various business pressures, and the employer put cogent arguments in support of its views in this case, as did the ANMF. In my view the termination of bargaining by the employer did not mean that bargaining did not proceed fairly and efficiently, or provide support for such a view so that an order would rectify the deficiency.
Conclusion
[71] Taking into account all the evidence and submissions, I am not satisfied that making an order will promote the fair and efficient conduct of bargaining as required by s.238(4)(b). I must therefore dismiss the application. It is not necessary for me to deal with other issues. An order is contained in PR709752.
DEPUTY PRESIDENT
Appearances:
E White of Counsel for the applicant.
A Herbert of Counsel for the respondent.
Hearing details:
2019.
Melbourne:
May 24; June 3 to 5.
Printed by authority of the Commonwealth Government Printer
<PR709751>
1 Exhibit ANMF3, [11]; Attachment MR3.
2 Applicant Outline of Submissions 27 March 2019, 1 [1].
3 Further Witness Statement of Janene Rodgers, 29 May 2019, 8-9 [52].
4 Exhibit BC4; Attachment JR7, 96.
5 Emails and attachment from Applicant and Respondent, 12 June 2019.
6 Exhibit ANMF3; Exhibit ANMF4 and Exhibit ANMF5.
7 Exhibit ANMF7.
8 Exhibit VAHPA1.
9 Exhibit AMNF1.
10 Exhibit ANMF9.
11 Exhibit ANMF6.
12 Exhibit BC3 and Exhibit BC4.
13 Exhibit BC5.
14 Exhibit BC7.
15 Exhibit BC6.
16 Exhibit ANMF8.
17 Exhibit ANMF10.
18 Exhibit BC1.
19 Exhibit BC2.
20 Applicant Outline of Submissions 27 March 2019, 7 [44].
21 Ibid, 7 [46].
22 Ibid, 9 [55]-[56[.
23 Applicant Outline of Reply Submissions 18 April 2019, 2 [9].
24 Ibid, 4 [19]-[20].
25 Ibid, 4-6 [21]-[28].
26 Applicant Outline of Submissions 27 March 2019 7-9 [47]-[54] and Ibid, 6-7 [29]-[35].
27 [2016] FWC 610 at 119.
28 Applicant Further Submissions 30 May 2019, 1-2 [1]-[3].
29 Ibid, 2-3 [4]-[5].
30 Ibid, 3 [6].
31 Respondent Outline of Submissions 11 April 2019.
32 Witness Statement of Megan Reeve, 5 February 2019, 2 [7].
33 Ibid, 2 [6].
34 Ibid, 2-3 [8]-[9].
35 Ibid, 4 [12].
36 Ibid, 4-5 [13]-[15].
37 Ibid, 5 [16].
38 Ibid, 5-6 [17].
39 Ibid, 6-7 [18]-[22].
40 Ibid, 7-8 [22]-[23].
41 Ibid, 8 [24].
42 Ibid, 9-22 [25]-[76].
43 Ibid, 20 [66].
44 Ibid, 20 [67].
45 Ibid, 20-21 [68].
46 Ibid, 21 [70].
47 Ibid, 21 [71].
48 Ibid, 21-22 [72].
49 Ibid, 22 [73].
50 Ibid, 22 [74].
51 Ibid, 22 [75].
52 Ibid, 8-9 [23]-[28].
53 Ibid, 9-10 [29]-[31].
54 Ibid, 10 [32]-[33].
55 Ibid, 10 [34].
56 Ibid, 10-15 [35]-[51].
57 Ibid, 15 [52].
58 Ibid, 15-20 [53]-[65].
59 Transcript PN350-843.
60 Witness Statement of Roslyn Holland, 4 February 2019, 4 [11].
61 Ibid, 4 [12].
62 Ibid, 4 [13].
63 Ibid, 4 [14].
64 Ibid, 4-5 [15].
65 Witness Statement of Mitchell Hoover, 4 February 2019, 1-2 [4]-[6].
66 Ibid, 2-3 [7]-[8].
67 Ibid, 3 [11].
68 Ibid, 4 [12].
69 Ibid, 4 [13].
70 Ibid, 4-5 [14].
71 Ibid, 5 [15].
72 Ibid, 5 [16].
73 Transcript PN1048-1147
74 Witness Statement of Luke Smeaton, 14 March 2019, 1 [4].
75 Ibid, 2 [7].
76 Ibid, 2 [9].
77 Ibid, 2 [12].
78 Transcript 1268-1326.
79 Witness Statement of Elizabeth Perdomo, 4 February 2019, 1-4 [4]-[19].
80 Ibid, 4-6 [20]-[23].
81 Ibid.
82 Transcript PN146-262.
83 Witness Statement of Karynne Ann Paull, 4 February 2019, 1-3 [3]-[11].
84 Transcript PN1185-1249.
85 Witness Statement of Andrew John Brakey, 29 February 2019, 2 [8].
86 Witness Statement of Trish O’Hara, 14 March 2019, 2 [5].
87 Ibid.
88 Ibid, 3 [6].
89 Ibid, 3 [7]-[8].
90 Ibid, 3-4 [9]-[10].
91 Ibid, 4 [11].
92 Ibid, 5 [12].
93 Ibid, 5-6 [13]-[17].
94 Transcript PN885-945.
95 Witness Statement of Janine Rodgers, 25 February 2019, Attachment JR3.
96 Ibid, Attachment JR9.
97 Ibid, Attachment JR10.
98 Ibid, Attachment JR11.
99 Ibid, Attachment JR12.
100 Ibid, Attachment JR13.
101 Ibid, Attachment JR14.
102 Ibid, Attachment JR15.
103 Ibid, Attachment JR16.
104 Ibid, Attachment JR18.
105 Further Witness Statement of Janene Rodgers, 29 May 2019, Attachment JR3.
106 Ibid.
107 Ibid 4-5 [21].
108 Ibid, 5 [22].
109 Ibid, 5 [23].
110 Ibid, 5 [25].
111 Ibid, 4 [16].
112 Ibid, 6 [34].
113 Ibid, 8 [48].
114 Ibid, 8 [51].
115 Ibid, 9 [53-[54].
116 Ibid, 9 [56].
117 Transcript PN1394-1810.
118 Witness Statement of Megan Zoy Millman, 25 February 2019.
119 Witness Statement of Fiona Louise Hearn, undated, 3 [11].
120 Ibid, 3 [25].
121 Transcript PN1830-1904.
122 Witness Statement of Deirdre Anne McGill, 25 February 2019, 1-2 [6]-[11].
123 Ibid, 2 [12].
124 Ibid, 3-4 [20-[24].
125 Ibid, 3 [22].
126 Witness Statement of Everett Claudio McIvor, 25 February 2019.
127 Transcript PN2332-2372.
128 Witness Statement of James Patrick Toohey, 25 February 2019, 4 [17]-[22].
129 Transcript PN2093-2133.
130 Witness Statement of Megan Reeve, 5 February 2019, 20-22 [66]-[76].
131 Ibid, 15 [50]-[54].
132 (2010) 193 IR 293.
133 [2016] FWC 610.
134 See Witness Statement of Megan Reeve, 5 February 2019, 20 [66] and Witness Statement of Roslyn Holland, 4 February 2019, 4 [11].
135 Transcript PN2529.
136 Witness Statement of Everett McIvor, 25 February 2019, 6 [56].
137 Ibid, 1 [9].
138 Ibid, 2 [20].
139 Ibid, 3 [29].
140 Ibid, 4 [39].
141 Ibid, 4 [40].
142 Ibid, 2 [11]-[13].
143 Witness Statement of Janene Rodgers, 25 February 2019, 10-11 [93]-[109].
144 Transcript PN457.
145 Witness Statement of Janene Rodgers, 25 February 2019, 4-5 [31]-[40].
146 Ibid, Attachment JR13,6.
147 Ibid, Attachment JR16, 2.
148 Transcript PN1665.
149 Further Witness Statement of Janene Rodgers, 29 May 2019, 5 [22].
150 Transcript PN1646.
151 Further Witness Statement of Janene Rodgers, 29, May 2019, Attachment JR4.
152 See Witness Statement of Megan Reeve, 5 February 2019, 7 [22] describes the RDNS agreement inclusion of ‘many’ standard Victorian nursing industry terms and conditions, some ‘compromised marginally’, 8 [23]-[24].
153 [2016] FWC 610.
154 Ibid, 5-6 [17].
155 Further witness statement of Janene Rodgers, 29 May 2019, 4 [16].
156 Transcript PN483-484; 488-9.
157 Transcript PN2166.
158 Witness Statement of Fiona Louise Hearn, undated, 3 [25].
159 Witness Statement of Deirdre Anne McGill, 25 February 2019, 3-4 [20]-[24].
160 Ibid, 3 [22].
161 Transcript PN896.
162 Witness Statement of Mitchell Hoover, 4 February 2019, 2 [7].
163 Transcript PN1245.
164 Transcript PN1074-1080; 1229; 895-899.
165 Witness Statement of Megan Reeves, 5 February 2019, Attachment MR28.
166 Transcript PN2458.
167 Transcript PN309-472.
168 Witness Statement of Janene Rodgers, 25 February 2019, Attachment JR8.
169 Witness Statement of Janene Rodgers, 25 February 2019, Attachment JR1 and Witness Statement of Megan Reeves, 5 February 2019, Attachment MR10.
170 Witness Statement of Megan Reeves, 5 February 2019, Attachment MR11.
171 Ibid, Attachment MR12.
172 Ibid, 10 [32].
173 Ibid, Attachment MR13.
174 Ibid, 10 [33].
175 Ibid, Attachment MR14.
176 Further Witness Statement of Megan Reeve, 19 March 2019, AttachmentMR1.
177 Ibid, 2 [6].
178 Transcript PN2471.
179 Transcript PN2485.
180 Transcript PN1776.
181 Further Witness Statement of Janene Rodgers, 29 May 2019, Attachment JR3.
182 Transcript PN1746.
183 Further Witness Statement of Janene Rodgers, 29 May 2019, Attachment JR3.
184 Transcript PN840-841.
185 Transcript PN810-814.
186 Transcript PN2648-2649.
187 Transcript PN2650.
188 Transcript PN2667 and Witness Statement of Janene Rodgers, 25 February 2019, 11 [106].
189 Transcript PN2672-2673.
190 Transcript PN2675.
191 Transcript PN2685-2687.
192 Transcript PN2690-2691.
193 Transcript PN2710-11.
194 Transcript PN2756.
195 Transcript PN2764.
196 Transcript PN2768.
197 Transcript PN2800.
198 Transcript PN2811.
199 Transcript PN2813.
200 Transcript PN2581-2601.
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