CPSU, the Community and Public Sector Union v Australian Health Practitioner Regulation Agency T/A Ahpra

[2016] FWC 8914

[2016] FWC 8914

FAIR WORK COMMISSION

REASONS FOR DECISION

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

CPSU, the Community and Public Sector Union
v
Australian Health Practitioner Regulation Agency T/A AHPRA
(B2016/1263)

COMMISSIONER JOHNS MELBOURNE, 14 DECEMBER 2016

Proposed protected action ballot of employees of Australian Health Practitioner Regulation Agency.

[1] On Thursday, 1 December 2016, the Community and Public Sector Union (CPSU/applicant) made an application for a protected action ballot order in relation to a group of employees of the Australian Health Practitioner Regulation Agency (AHPRA/respondent).

[2] The application was made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The respondent was served with the application within 24 hours after the making of it in the Fair Work Commission (Commission).

[4] Section 441 of the Act mandates that the Commission must, as far as practicable, determine an application for protected action ballot order within 2 working days after the application is made.

[5] Consequently the matter was listed for hearing and was determined on Monday, 5 December 2015. These are the reasons for the decision issued in transcript.

[6] The employees to be balloted are presently covered by the following agreements (Agreements):

● Australian Health Practitioner Regulation Agency Enterprise Agreement (NSW) 2013-2016;

● Australian Health Practitioner Regulation Agency Enterprise Agreement (TAS) 2014-2016;

● Australian Health Practitioner Regulation Agency Enterprise Agreement (SA) 2013-2016;

● Australian Health Practitioner Regulation Agency Enterprise Agreement (ACT, NT, Vic, WA) 2014-2016; and

● Australian Health Practitioner Regulation Agency Enterprise Agreement (QLD) 2014-2016.

[7] The nominal expiry date of the Agreements is 30 June 2016.

[8] On 2 December 2016, Ms Sarndrah Horsfall, Executive Director, Business Services of AHPRA emailed the applicant advising that AHPRA would consent to the orders, if the following variations were made to the applicant’s proposed order:

● “Part 7: AHPRA does not consent to the proposed industrial action set out in part 7. The description of the proposed industrial action is unclear. Please amend this part of your application immediately to state the nature of the proposed industrial action and provide a copy for our review as soon as possible. Alternatively, please delete the proposed industrial action in paragraph 7 of Schedule A of the application.
● Part 10:  The proposed wording is untrue and we invite you to consider an alternative form of wording.
● Part 12: AHPRA requests the following qualification be inserted to part 12 “except in the case where it is in the public interest to do so”.
● Part 14: AHPRA requests the following qualification be inserted to part 14 “save that no signage or messages will be placed that contain profane, offensive or distasteful language or slogans.”
● Part 17: AHPRA requests the following qualification be inserted to part 17 “except in the case where it is in the public interest to do so or failure to respond would pose a risk to the health and safety of AHPRA’s employees”
● Part 19: AHPRA requests the following qualification be inserted to part 19 “except in the case where it is in the public interest to do so or failure to attend would pose a risk to the health and safety of AHPRA’s employees”
● Part 23: AHPRA requests the following be deleted from part 23 “Practitioners, new registrants and renewals”.”

[9] On that same day, Mr Will Wyatt, Industrial Organiser for the CPSU, replied to the respondent’s email advising that the CPSU would not adopt any of the variations proposed by AHPRA.

[10] On 2 December 2016, the parties were directed to simultaneously file and serve submissions, witness statements and any documents in support of their respective positions by 12:00pm Monday, 5 December 2016. Neither party complied with the Directions.

[11] The matter was listed for hearing at 4:30pm Monday, 5 December 2016.

[12] At 3:30pm Monday, 5 December 2016, Ms Horsfall, on behalf of AHPRA emailed the Commission to advise that AHPRA wold not be appearing at the hearing later that day. Consequently the respondent made no submissions in support of the proposed variations.

[13] At the hearing Mr Will Wyatt appeared for the CPSU, he was accompanied by:

● Mr Andrew Munro the CPSU AHPRA delegate; and

● Mr M Cronin also from the CPSU.

[14] At the hearing, following an exchange with me, the applicant agreed to amend question 10 of the proposed order, to insert “I feel” between the words “because” and “my”.

[15] Having regard to all that had been put in relation to this matter. The Commission, as presently constituted, was satisfied that the requirements of subsection 443(1) of the Act had been met, including that the applicant has been and is genuinely seeking to reach an agreement with AHPRA. Accordingly, an Order had to be made.

[16] The Order [588469] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

W, Wyatt for the Community and Public Sector Union

A, Munro, CPSU AHPRA delegate

M Cronin for the Community and Public Sector Union

Hearing details:

5 December

2016

Sydney, Melbourne

Printed by authority of the Commonwealth Government Printer

<Price code A, PR588468>