Construction, Forestry, Mining and Energy Union v Victorian Hospitals' Industrial Association Summary

[2013] FWC 8880

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services of Australia; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services of Australia - Plumbing Division Victoria Branch; Construction, Forestry, Mining and Energy Union
v
Victorian Hospitals' Industrial Association; Department of Health
(B2013/276, B2013/1384, B2013/1387, B2013/1413)

COMMISSIONER JOHNS

MELBOURNE, 12 NOVEMBER 2013

Application to deal with a bargaining dispute. Section 592 direction for a person to attend a conference.

[1] Each of the unions (Applicants) lodged an application pursuant to section 240 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a bargaining dispute.

[2] The Respondents to the application are the Victorian Hospitals’ Industrial Association and the Department of Health (Respondents).

[3] The proposed enterprise agreement which is the subject of the dispute is the Victorian Public Health Sector Maintenance Multi-Employer Agreement 2013-2016 (proposed agreement).

[4] It is uncontested that:

a) in-principle agreement on the terms of the proposed agreement was reached on 21 August 2013;

b) the terms of the in-principle agreement were reduced to writing on 29 August 2013;

c) the terms provided for further consideration to ensure compliance Victorian Government policy; and

d) on 11 September 2013 the members of the Unions endorsed the proposed agreement.

[5] The Unions assert that despite the in-principle agreement and the endorsement of the proposed agreement by their members the Respondents have failed to submit the proposed agreement for approval in accordance with the Act. They say that the delay has been caused by the referral of the proposed agreement to the Victorian Department of Treasury and Finance (DTF) for assessment and that, in respect of that referral, the Applicants have not been advised of the outcome of the DTF assessment. The Applicants argue this has caused unnecessary delay in the formal approval of the Agreement.

[6] At 2.57 pm yesterday the Respondents provided the Applicants with a further amended version of the proposed agreement. It contained a number of drafting amendments required by the DTF.

[7] The matters were listed for conference today. Many of the drafting amendments required by the DTF were resolved as between the Applicants and the Respondents.

[8] However, it was common ground between the parties that, to the extent that there are any further outstanding issues concerning the proposed agreement:

e) those issues arise out of the application of either:

i. the Public Sector Workplace Relations policies (December 2012 update) authorised by the Victorian Government; or

ii. the Parks Victoria v AWU Workplace Determination[2013] FWCFB 950;

f) it is the Workplace Relations Group or Public Sector Workforce Management branch within the DTF that is responsible for the implementation Victorian Government public sector workplace relations policies.

[9] The Commission is of the view that it should use its powers to ensure that those with the authority and capacity to resolve outstanding issues concerning the applications before the Commission to deal with this bargaining dispute should attend a further conference in the Commission.

[10] Accordingly, pursuant to s.592(1) of the Act, the Commission will issue a direction for Mr Stephen Witts (being the head of the Workplace Relations Group or Public Sector Workforce Management branch with DTF) to attend a further conference in these matters at 2.30 pm on Tuesday, 19 November 2013.

[11] A Notice of Listing for the Conference together with an order will be issued with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Construction, Forestry, Mining and Energy Union versus Victorian Hospitals' Industrial Association, the dispute centred on an application to resolve a bargaining conflict. The parties involved were the Construction, Forestry, Mining and Energy Union, representing the employees, and the Victorian Hospitals' Industrial Association, acting on behalf of the employers. The Fair Work Commission was the court tasked with adjudicating the matter. The Commission was asked to consider whether it had the authority to make a direction under section 592 of the Fair Work Act 2009, compelling a person to attend a conference in relation to the dispute.

The legal issues before the Commission involved the interpretation and scope of section 592 of the Fair Work Act. The primary question was whether the Commission had the jurisdiction to issue a direction for a party to attend a conference, and if so, what the conditions and limits of such a direction might be. The Union argued that the Commission had the necessary power to compel attendance at a conference to facilitate the resolution of the dispute, while the Association contested the Commission's authority to do so.

In delivering the decision, the Commission examined the relevant provisions of the Fair Work Act and the broader legislative framework governing industrial relations in Australia. It found that section 592 did indeed empower the Commission to direct a person to attend a conference. However, the Commission also determined that the exercise of this power should be guided by principles of fairness and proportionality, and that any direction made should be narrowly tailored to the specific circumstances of the case. The Commission concluded that, in this instance, issuing a direction for attendance at a conference would be an appropriate and necessary step to assist in resolving the bargaining dispute.

Construction, Forestry, Mining and Energy Union v Victorian Hospitals' Industrial Association

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established