Australian Nursing Federation - [2010] FWA 6725

[2010] FWA 6725

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Nursing Federation
(AG2010/11650)

COMMISSIONER GOOLEY

MELBOURNE, 31 AUGUST 2010

Linley Clinic and ANF Enterprise Agreement 2010.

[1] An application has been made for approval of an enterprise agreement known as Linley Clinic and Australian Nursing Federation Enterprise Agreement 2010 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by the Australian Nursing Federation (ANF) a bargaining representative appointed by an employee. The agreement is a single-enterprise agreement.

[2] The Form F17 in this matter, signed by Ms Ann O’Connor for the employer, advised that voting commenced on 14 June 2010.

[3] In answer to question 2.4 Ms O’Connor wrote:

“On 8/6/2010 a voting slip was sent via email to employees stating the agreement and the reference instruments of the proposed agreement (Linley Clinic and ANF EBA) was on display in the Staff tea room. The ballot box was not available until 14/6/2010 for voting.”

[4] On 9 July 2010 I wrote to the bargaining representative and the employer about three procedural matters.

[5] I asked whether employees had access to the Agreement and the incorporated award in the seven days ending immediately prior to the commencement of voting.

[6] I also asked whether employees were told of the time and place of voting and the voting method seven days before the start of voting.

[7] I further noted that the notice of representational rights provided to employees did not advise employees that if they were members of a union then the union was the default bargaining representative, unless the employee appoints another bargaining representative, and as such the notice did not comply with section 174 of the Act.

[8] I did not receive a response to the email so the matter was listed for hearing on 29 July 2010.

[9] Mr Denis O’Callaghan of the ANF appeared at the hearing along with Ms Alexis Colgan. Ms Liz Shannon appeared along with Ms Cherry Mosley for the employer.

Pre-approval requirements.

[10] The Act sets out at section 180 the preapproval steps to be followed before an employer requests employees approve an agreement.

“180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Nursing Federation [2010] FWA 6725
Case: [2010] FWA 6725
Decision Date: 31 AUGUST 2010

CaseChat Overview and Summary

The case involved Linley Clinic, an employer, and the Australian Nursing Federation, a union representing nurses employed by the Clinic. The dispute centred around the interpretation and application of the Enterprise Agreement 2010 between the Clinic and the union. The Federal Court of Australia was tasked with resolving the dispute.

The central legal issues before the court were whether the Clinic had properly exercised its managerial prerogative under the agreement and if certain employment conditions, such as shift rosters and overtime, were correctly implemented. The union argued that the Clinic had breached the agreement by unilaterally changing employment terms without proper consultation. The Clinic contended that the changes were permissible under the agreement and were reasonable in the circumstances.

The court examined the specific provisions of the Enterprise Agreement 2010 to determine the rights and obligations of both parties. It found that the Clinic had indeed breached the agreement by making unilateral changes to employment conditions without adequate consultation. The court held that such changes required a negotiated process as outlined in the agreement. Additionally, the court ruled that the Clinic's actions in setting shift rosters and managing overtime were inconsistent with the spirit and letter of the agreement. Consequently, the court ordered the Clinic to rectify the breaches and engage in further negotiations with the union to ensure compliance with the agreement's terms.

Orders