Australian Nursing Federation

[2011] FWA 7764

[2011] FWA 7764

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.240—Bargaining dispute

Australian Nursing Federation
(B2011/3853)

COMMISSIONER GOOLEY MELBOURNE, 8 NOVEMBER 2011

Albury Wodonga Health (Wodonga Hospital) and Others.

[1] The Australian Nursing Federation (the ANF) and the certain public hospital employers (the employers) which are the subject of a Single Interest Employer Authorisation 1 are negotiating for an enterprise agreement.

[2] On 7 October 2011, having heard from the parties, a protected action ballot order 2 was issued in relation to designated employees of the employers.

[3] The ANF has made an application pursuant to section 240 of the Fair Work Act 2009 (FW Act) for Fair Work Australia to deal with a dispute about the agreement as the ANF submits the bargaining representatives for the agreement are unable to resolve the dispute.

[4] The application was filed along with similar applications in relation to 48 other employers. A telephone mention was held on 7 November 2011 to ascertain how the parties wished the matters to be dealt with by Fair Work Australia. As a result a directions hearing was held on 8 November 2011.

[5] At the hearing Mr Paul Gilbert appeared for the ANF and Mr Frank Parry SC of counsel was given permission to appear with Mr John Snaden for the employers.

[6] The ANF sought that the matter be set down for conference as soon as possible. The ANF submitted that whilst there was memorandum of understanding which set out a bargaining process agreed to by the VHIA and the ANF, that document was without prejudice to the rights of the parties under the FW Act. The ANF submitted that the publication of documents since the last meeting about the strategy to be adopted in bargaining by the employers meant that the ANF no longer was supportive of that process.

[7] Mr Parry submitted the application by the ANF was premature. He submitted that negotiations were occurring in accordance with the MOU signed by the ANF and VHIA. A facilitator was engaged, there had been 5-6 meetings and it had been agreed that another meeting would take place on 10 November 2011. At the last meeting on 3 November 2011 a detailed action list was agreed between the parties and the employers had not been advised that the ANF was withdrawing from the process. It was his submission that bargaining had not been exhausted. He therefore submitted that Fair Work Australia did not have the jurisdiction to deal with the dispute because the ANF was unable to establish that the bargaining representatives were unable to resolve the dispute.

[8] Mr Parry further asked that if a conciliation conference was convened that the ANF discontinue its protected industrial action whilst that conciliation process is occurring. He also sought that the conference be conducted in private and that the parties not be able to discuss what occurs in the conference outside the conference.

[9] Mr Gilbert submitted, in reply, that a bargaining representative does not require the agreement of the other bargaining representatives to make a section 240 application. Mr Gilbert submitted that the ANF no longer supported the procedure that had been previously agreed to in the MOU. He submitted that the cabinet in confidence document, leaked to The Age, was evidence that this was a sham process. He submitted that the ANF no longer had any trust in the process and would not continue with it. He further advised that protected industrial action had been notified to commence on either the 10 or 11 November 2011.

[10] I do not accept the submissions of Mr Parry that bargaining must be exhausted prior to a party seeking the assistance of Fair Work Australia. It is clear that the process previously agreed between the parties is no longer agreed. It is clear that the parties have been unable to resolve matters the subject of bargaining. In those circumstances and in circumstance where industrial action is due to commence on 10 or 11 November 2011 it is appropriate to list the matter for conference. I will therefore convene a conference of parties at 10am on Wednesday 9 November 2011.

COMMISSIONER

Appearances:

P Gilbert for the Australian Nursing Federation.

F Parry and J Snaden for the Employers.

Hearing details:

2011.
Melbourne:
November 8.

 1   PR515271

 2   PR515437

Printed by authority of the Commonwealth Government Printer

<Price code A, PR516599>