Australian Nursing Federation v Bupa Care Services Pty Ltd
[2009] FWA 245
•8 SEPTEMBER 2009
[2009] FWA 245 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Bupa Care Services Pty Ltd
(B2009/10581)
Health Services Union
v
Bupa Care Services Pty Ltd
(B2009/10591)
COMMISSIONER WHELAN | MELBOURNE, 8 SEPTEMBER 2009 |
Proposed protected action ballot by employees of Bupa Care Services Pty Ltd.
[1] These are applications by the Australian Nursing Federation (ANF) and Health Services Union of Australia (HSU) for protected action ballot orders under section 437 of the Fair Work Act 2009. The respondent, Bupa Care Services Pty Ltd, operates 16 facilities in Victoria and employs approximately 1500 employees. It is not disputed that both the ANF and HSU are bargaining representatives for the employees involved in these applications. The employees are currently covered by the Amity, ANF and HSU Certified Agreement 2005-2008 1 which has a nominal expiry date of 30 November 2008.
[2] In November 2008, the ANF initiated a bargaining period with the respondent under the provisions of the Workplace Relations Act 1996. In December they were notified that the respondent had appointed a bargaining representative to act for them and negotiations occurred at an industry level until April 2009 when attempts were made to negotiate directly.
[3] On 22 May 2009, ANF members voted to authorise the ANF to continue discussions in relation to a series of key claims and to authorise the union to seek a protected action ballot if satisfactory progress was not made within a reasonable time.
[4] The parties then met a number of times between 1 July and 1 September 2009. In August, the ANF again met with members and a second resolution, in similar terms to the first was passed on 13 August 2009. At the most recent bargaining meeting, on 1 September 2009, the respondent for the first time put a wages offer to the unions which was rejected.
[5] The HSU stated that they were a party to the existing certified agreement and to the negotiations with the respondent, first with the respondent’s then bargaining representative and later in direct negotiations with the employer.
[6] The respondent raised two issues in respect of the application. First, that the applications were made to ballot employees to take industrial action in support of a single enterprise agreement when the parties had been negotiating two separate agreements – one for nurses and one for health and allied services employees – and second, that the questions proposed to be put to the employees were ambiguous and unclear.
The nature of the bargaining
[7] The evidence of the employer in this matter was that it sought to make two separate agreements with the unions – one to cover nurses and one to cover employees covered by the Health and Allied Services – Private Sector – Victoria Consolidated Award 1998. It raised this proposition with the unions as early as the first meeting in July. It was the respondent’s understanding that there were no issues with that concept although Mr Franks agreed that there was no definite decision or agreement to proceed with separate agreements.
[8] The unions, for their part, stated that it was their position that they would consider two agreements but their preference remained for one agreement.
[9] The resolutions of the ANF members on 22 May and 13 August both refer to ‘a new enterprise bargaining agreement’. The starting point for the negotiations proposed by the union was by way of amendments to the existing certified agreement which covers all employees.
[10] It is clear that the respondent wanted two separate agreements. On 1 September 2009 it proposed different wage outcomes for the two groups of employees and different periods of operation for the two agreements.
[11] Both the ANF and HSU stated that while they were prepared to have two agreements if that was the outcome, the main objective was to negotiate the key items of the claim. Their dissatisfaction on 1 September was with both the offer and the proposal to treat different groups of employees differently. The preference was to have one agreement.
[12] It is apparent from the material before me that the employer was intent on having two separate agreements and was negotiating on that basis. The employer undertook to do a ‘cut and paste’ exercise, for example, to take material from the current certified agreement and put it into two new agreements.
[13] The unions, for their part, were prepared to consider two agreements but only on the basis that essential terms were mirrored and if they could agree equitable terms. The content was more important than the form the agreement or agreements took.
[14] I am satisfied that the unions had not committed themselves to negotiate two separate agreements and were not restrained therefore from seeking a ballot of employees, to be covered by a single agreement, to determine if they would take industrial action in support of such an agreement.
Scope of the questions
[15] I am satisfied that some of the questions proposed by the unions are worded in such a way that the intention may be unclear. This is not fatal to the application but the order as issued reflects changes intended to clarify what is being sought.
Conclusions
[16] I am satisfied that both the ANF and HSU are bargaining representatives for the purposes of section 437 and that what they are seeking is a single enterprise agreement.
[17] The applications specify the employees to be balloted and the questions to be put to them. As both applications deal with employees of the same employer I am satisfied that it is appropriate to deal with them together and the orders reflect that the ballots will be conducted at the same time.
[18] Further there is no restriction on the making of the application arising from section 438 as the relevant agreement reached its nominal expiry date in November 2008.
[19] I am satisfied from the material before me that the unions, and indeed the employer also, are genuinely trying to reach an agreement and all have agreed to participate in conciliation with a member of FWA to continue to try to reach agreement.
[20] These are the reasons for the ballot orders granted on 4 September 2009.
COMMISSIONER
Appearances:
L. Kelly for the Australian Nursing Federation.
M. Barrett for the Health Services Union of Australia.
M. Robinson with T. Franks and E. Mirabella for Bupa Care Services Pty Ltd
Hearing details:
2009.
Melbourne:
September 3.
1 Amity, ANF and HSU Certified Agreement 2005-2008 [AG847695 PR970527]
Printed by authority of the Commonwealth Government Printer
<Price code A, PR989135>
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