Australian Nursing Federation v Warrnambool City Council

[2010] FWA 5845

[2010] FWA 5845

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Nursing Federation
v
Warrnambool City Council
(B2010/3277)

VICE PRESIDENT LAWLER SYDNEY, 2 AUGUST 2010

Proposed protected action ballot by employees of Warrnambool City Council.

[1] This is an application for a protected application ballot order by the Australian Nursing Federation (ANF) for a ballot of registered nurses employed by the Warrnambool City Council.

[2] Mr Prendergast for the ANF made an uncontested submission that the requirements of the Fair Work Act have been met in relation to the application.

[3] There is no substantive opposition to the application save that Ms Neal for the Council noted that the ‘current’ workplace agreement, the Warrnambool City Council Enterprise Agreement No 4 – 2008 (current agreement), has a nominal expiry date of 25 August 2008 and queried whether the present application could be allowed in circumstances where the nominal expiry date had not yet passed.

[4] Section 438(1) is the relevant provision of Fair Work Act 2009 and provides:

“438 Restriction on when application may be made

(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).”

[5] The Warrnambool City Council Enterprise Agreement No 3 – 2005 was certified by the Australian Industrial Relations Commission on 27 April 2005 pursuant to s.170LS of the Workplace Relations Act 1996. That agreement was varied and extended by Commission Grainger on 25 August 2008 pursuant to item 2A(1)(b) of Schedule 7 to the WR Act. 1 The variation was constituted by a wholesale substitution of the text appended to the order of Commissioner Grainger for the text of the Warrnambool City Council Enterprise Agreement No 3 – 2005. [The Warrnambool City Council Enterprise Agreement No 3 – 2005, as varied and extended, became known as the Warrnambool City Council Enterprise Agreement No 4 – 2008.2]

[6] Clause 1.5.1 of the current agreement provides:

1.5.1 The nominal expiry date of the agreement is extended from 28 April 2008 until 28 April 2010 effective from the date of approval of extension by the Australian Industrial Relations Commission

[7] It appears that the confusion in this case has arisen because of the form of the order made by Commissioner Grainger. The Commissioner’s order (omitting the attachment) was:

“PREAMBLE

The Warrnambool City Council Enterprise Agreement No 3 – 2005 (the agreement) was certified by the Commission pursuant to s.170LS of the Workplace Relations Act 1996 ("the Act") on 27 April 2005.

This matter was heard before me in Melbourne on 20 August 2008. At the hearing the parties provided information about the agreement variation process such that I am satisfied that the relevant requirements of the Act have been met.

ORDER

A. Further to a decision given in transcript during proceedings in Melbourne on 20 August 2008, and in accordance with cl. 2A(1)(b) Sch. 7 of the Workplace Relations Act 1996, of the Act the above agreement is varied as follows:

By deleting the agreement in its entirety, and replacing with the attached.

B. This order shall come into force from 25 August 2008 and remain in force until 25 August 2010.

BY THE COMMISSION:

COMMISSIONER”

[8] Order B was unnecessary and reflects a practice of putting an end-of-operation date on orders of the AIRC which, in the case of orders making an award, was required by the pre-WorkChoices version of the Workplace Relations Act. There was no such requirement in relation to an order varying and extending a certified agreement. The reference to 25 August 2010 in Commissioner Grainger’s order is irrelevant. I am satisfied that the nominal expiry date of the current agreement was 28 April 2010 as specified in clause 1.5.1 of the current agreement.

[9] In any event, the present application was made on 30 July 2008. This is within 30 days before the nominal expiry date of the current agreement. Section 438 does not prevent the present application.

[10] I am satisfied that the requirements s.443 of the FW Act have been met in relation to the present application and that an order pursuant to s.443(1) should issue. An order has issued in conjunction with this decision.

VICE PRESIDENT

Appearances:

Mr Prendergast with Mr Birch on behalf of the applicant.

Ms Neal with Ms Stewart on behalf of the respondent.

Hearing details:

2010.

Sydney via telephone:

2 August.

 1   PR982919

 2   See clause 1.2.1 of the copy of the agreement attached to the order in PR982919.

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