Health Services Union of Australia and Australian Nursing Federation v Royal District Nursing Service Limited

[2011] FWA 8033

Note: An appeal pursuant to s.604 (C2011/6880) was lodged against this decision - refer to Full Bench decision dated 1 March 2012 [[2012] FWAFB 1489] for result of appeal.

[2011] FWA 8033

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.238 - Application for a scope order

Health Services Union
v
Royal District Nursing Service
(B2011/3655)

COMMISSIONER ROE MELBOURNE, 24 NOVEMBER 2011

Concerning agreement coverage of employees employed by the Royal District Nursing Service.

[1] The Royal District Nursing Service (RDNS), Australian Nursing Federation (ANF), and the Health Services Union (HSU) are engaged in bargaining for two agreements to replace the current single agreement, the Royal District Nursing Service, Australian Nursing Federation and Health Services Union and Staff Collective Agreement 2007-2011 (the 2007 Agreement) The nominal expiry date of the 2007 Agreement is 1 November 2011.

[2] On 4 October 2011 the HSU made this Application for a Scope Order. The HSU seeks an Order that the proposed Agreement cover the RDNS and all those employed by the RDNS in the State of Victoria as per the scope of the previous industrial instrument. The scope of the previous instrument applied to all employees who are employed by RDNS in “classifications to which this Agreement applies, unless specifically noted otherwise”. However, it is reasonably apparent from the definitions in the 2007 Agreement and the incorporated Awards that coverage is confined to Victoria. The 2007 Agreement does not cover all employees of RDNS as RDNS employs persons outside of Victoria. There may also be some other managerial employees who are not covered by the Agreement but it is not necessary to decide this matter.

[3] The RDNS provides services to over 35,000 clients per annum and in Victoria employs approximately 1157 nurses; 53 enrolled nurses; 71 community care aids; 205 administrative, support and customer service employees; and 50 Allied Health Professionals including physiotherapists, counsellors and social workers. 1

[4] The management of RDNS first considered the options for the structure of the agreement(s) to replace the 2007 Agreement in June 2011. Management sent emails to employees in early July with notices of representational rights and advising employees that there would be information sessions concerning bargaining for replacement for the 2007 Agreement. The advice was that the 2007 Agreement expired at the end of October and that “this has presented RDNS with the opportunity to split the current collective agreement into two (2) Enterprise Agreements, one for Nursing staff and one for Professional and Support staff. This is now pending final Board approval later this month.” 2 Briefings were held between 25 and 29 July 2011. It is not contested that employees raised a number of concerns about the move from one to two agreements at the briefings. The management of RDNS advised the RDNS Board that it was considering alternative options for the structure of the agreement(s) to replace the 2007 Agreement on 23 June 2011 and a strategy proposal was presented to the RDNS Board on 27 July 2011. The Board authorised management to adopt an approach whereby the 2007 Agreement would be replaced by two agreements. Management decided to proceed with two agreements rather than one agreement on 28 or 29 July 2011.

[5] Employees were advised on 15 August 2011 that RDNS had made a decision to negotiate two agreements rather than one. Bargaining meetings began on 7 September 2011. There was one set of bargaining meetings for Nursing employees including Division one and Division two nurses and Community Care Aides. Both the HSU and the ANF are bargaining representatives for these employees and they have attended these bargaining meetings. The ANF is a bargaining representative for Division 1 and 2 nurses. The HSU is also a bargaining representative for Division 2 nurses and for Community Care Aides. There was a separate set of bargaining meetings for Allied Health Professionals (including counsellors, physiotherapists, and social workers), Customer Service Operators and Administrative employees. The HSU is the bargaining representative for these employees.

[6] On 20 September 2011 the HSU wrote to RDNS advising that:

“HSU are concerned that the splitting of the Agreement that covers RDNS employees has the potential to adversely affect Health Professionals and Allied Support Staff. The HSU proposes that a Single Enterprise Agreement be created to cover all staff employed by RDNS in Victoria. Our view is that bargaining will be fairer and more efficient if there was only one agreement covering all employees.” 3

The HSU then outlined the nature of the concerns and the reasons why a single agreement would be more efficient and fair. The RDNS responded by confirming their position that there should be two agreements and outlining reasons for their position and in response to the position of the HSU. 4

[7] On 4 October 2011 the HSU made this Application for a Scope Order.

[8] The Application was heard on 17 November 2011. I granted leave for the HSU to be represented by Mr Langmead and for the RDNS to be represented by Mr McNab. I have considered the written and oral submissions of the parties. 5

[9] Evidence for the HSU was given by:

• Ms Kate Luckman, the HSU Industrial Office who has been involved in the negotiations for the proposed Agreement(s). 6



• Ms Julia Massee, who is employed as a physiotherapist by the RDNS. 7



• Ms Elizabeth Gibson, who is employed at the Head Office of RDNS as a Technical Writer Team Leader. 8

[10] Evidence for RDNS was given by:

• Ms Rosemary Hogan, who is RDNS Deputy Chief Executive Officer and was the Acting CEO from May until August 2011. 9



• Ms Suzanna Muchow, who is Senior Advisor of Human Resources for RDNS. 10



• Ms Vicki Sutton, who is Executive General Manager Corporate Services for RDNS. Ms Sutton manages the Head Office support functions which employ approximately 80 people, all except for three of whom are based at the Head Office. There are four nurses in the area and the rest of the employees can be described as administrative or support employees. 11



• Ms Fiona Hearn, who is the General Manager Director of Nursing North and West. Ms Hearn is responsible for a number of work sites and a number of different projects including oversight of the Allied Health Team in four programs. The programs managed by Ms Hearn employ nurses and Allied Health Professionals. The physiotherapists, occupational therapists, counsellors and social workers provide support to clients and to nurses in their work with clients. 12



• Ms Jennifer O’Dowd, who is the Operations Manager in the Customer Service Centre. The Customer Service Centre handles inbound and outbound calls and provides support to clients and to nurses and other carers in the field on the telephone. The Centre employs 132 employees of whom 52 are nurses, 14 are counsellors, 62 are Customer Service Operators, 3 are managers and 2 are other support workers including information technology. 13



• Ms Julie Murphy, who is the Client Services Manager RDNS Moorabbin. There are 99 nurses, Allied Health Professionals and support employees at RDNS Moorabbin. Only three of the 99 employees are Allied Health Professionals and support employees and the remaining employees are nurses. 14

[11] The ANF did not participate in the proceedings. The ANF provided a letter setting out its position dated 14 November 2011. 15 That letter states that: “ANF neither opposes nor supports the application”. The ANF asserts that it is the bargaining representative for the majority of RDNS employees. This was not disputed by the parties. ANF expressed some concern at the “extent of potential delays with the coming into operation of a single comprehensive agreement”. The ANF elaborated on this point as follows: “we are concerned about potential delays if fully incorporating and expressing four awards covering all employees into a single Agreement as opposed to expressing award terms for nurses and Community Care Aides”. The ANF requested that “the tribunal give consideration to this letter”.16

[12] The HSU provided witness statements from four other employees. There was a dispute between RDNS and HSU about leave for these employees to attend the proceedings in the Tribunal. These employees were not ultimately available for cross examination in the proceedings and their statements are not included in the evidence I have considered.

Section 238

[13] The terms of s.238 of the Fair Work Act 2009 (the Act) are as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative must have given notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(c) considers that the relevant bargaining representatives have not responded appropriately.

When FWA may make scope order

(4) FWA may make the scope order if FWA is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

(b) that making the order will promote the fair and efficient conduct of bargaining; and

(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d) it is reasonable in all the circumstances to make the order.

Matters which FWA must take into account

(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Scope order must specify employer and employees to be covered

(5) The scope order must specify, in relation to a proposed single-enterprise agreement:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

(6) The scope order:

(a) must be in accordance with this section; and

(b) may relate to more than one proposed single-enterprise agreement.

Orders etc. that FWA may make

(7) If FWA makes the scope order, FWA may also:

(a) amend any existing bargaining orders; and

(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by FWA, or take such other actions, as FWA considers appropriate.”

[14] Section 238(4A) applies because the scope proposed by the HSU does not mean that the proposed agreement will cover all employees.

Jurisdiction

[15] I am satisfied that the HSU is a bargaining representative for a proposed single enterprise agreement and hence can make this Application. The HSU in their advice to RDNS say that the proposal to replace the 2007 Agreement with two agreements has “the potential to adversely affect Health Professionals and Allied Support Staff” and that “bargaining will be fairer and more efficient if there was only one agreement.” 17 It is not in contention and I am satisfied that the HSU and a number of members of the HSU communicated to management their concerns about the proposal to have two agreements on a number of occasions prior to the sending of the letter. A concern by a bargaining representative that the scope of an agreement is leading to less efficient and fair bargaining is sufficient to satisfy the requirements of Section 238(1). I am satisfied that the HSU is concerned that bargaining is proceeding less efficiently and fairly because the bargaining is taking place in two separate processes for two separate agreements than it would if the bargaining was to proceed for a single agreement. I am satisfied that the RDNS understood from the correspondence of 20 September 2011 and other interactions with the HSU and its members that the HSU was concerned that bargaining was proceeding less efficiently and fairly because it was proceeding in two separate processes for two separate agreements and that the HSU was not simply concerned about some potential lack of efficiency and fairness. I am satisfied that the requirements of Section 238(1) are met.

[16] Section 238(2) does not apply in this case.

[17] I am satisfied that the requirements of Section 238(3) have been met.

[18] It is not in contention and I am satisfied that the parties are bargaining in good faith. RDNS initially raised some concerns about this matter in their submissions but at the hearing they agreed not to pursue this matter. The only relevant considerations raised by the parties relate to the issues of the impact on bargaining of negotiations for two agreements as opposed to one agreement. Section 238(4)(b), (c) and (d) are the relevant criteria. I may make the scope order if I am satisfied:

“(b) that making the order will promote the fair and efficient conduct of bargaining; and

(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d) it is reasonable in all the circumstances to make the order.”

[19] In considering whether the group of employees identified by the HSU in the proposed scope order who will be covered by the proposed agreement was fairly chosen, I must take into account whether the group is geographically, operationally or organisationally distinct. If I consider that negotiations for two separate agreements would result in coverage that is not fairly chosen then this may be a relevant consideration in deciding whether or not to make the order either pursuant to Section 238(4) (b) or Section 238(4) (d).

MFB Full Bench

[20] In considering the criteria in Section 238(4) the decision of a Full Bench of FWA in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board 18 is relevant. This is the only Full Bench decision of FWA in respect to the making of a scope order. There was no similar provision under previous legislation although the concept of whether the group is geographically, operationally or organisationally distinct was present in earlier legislation.

[21] The most relevant findings from what I will refer to as the MFB Full Bench decision are as follows:

“As recorded above, it was submitted by the UFUA and the ACTU that particular weight should be given to the views of employees because of, for example, legislative policy imperatives concerning freedom of association. While we generally agree with that submission it requires some qualification. The power to make a scope order is predicated on disagreement between bargaining representatives. The discretion to resolve that disagreement is to be exercised as provided for in ss.238(4) and (4A). While those provisions do not assign priority to the views of employees, in applying the provisions it is necessary to have regard to the overall context. The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association and collective bargaining. It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in ss.238(4) and (4A) in a particular case may make it appropriate to make a scope order contrary to the views of the employees potentially affected.

In its submissions AiGroup sought to limit the circumstances in which an order might be made. We refer in particular to the submission that a scope order should not be made against the opposition of a bargaining representative unless one of the bargaining representatives is pursuing a scope for negotiations which is unfair. That submission must be rejected. It involves adding an additional requirement to those specified in ss.238(4)(b) and (c). If two parties to an application for a scope order advance alternative positions neither of which is objectively unfair but the tribunal is satisfied of the relevant matters and is disposed to make an order, it would be an error not to do so.

The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made. The relevant consideration under s.238(4)(c) is whether the specified group is fairly chosen. It may be that a number of groupings might be fair – what this criterion requires is that the group which is included in the scope order is fairly chosen. This issue is also dealt with in s.238(4A), which we discuss shortly.

We disagree with the UFUA’s suggestion that as a matter of statutory construction preference ought to be given to agreements that cover as much of an enterprise as possible. Section 238 permits a scope order which does not apply to the whole enterprise. In such a case the tribunal, in deciding whether the group is fairly chosen, must take into account whether the group is distinct in one of three specified respects. It may follow that if the group is not distinct in one of those respects it may not have been fairly chosen, but it does not necessarily follow in all circumstances. For present purposes it is not necessary to speculate upon the circumstances in which the conclusion might not follow.” 19

[22] The MFB Full Bench accepted that in considering the views of affected employees the views expressed by particular employees and the relevant union are relevant. In that case there were a significant number of relevant employees who were individual bargaining representatives who did not express a view in the proceedings. The Full Bench decided that:

“While the failure of the bargaining representatives to make any submissions does raise some questions, we have decided to deal with the matter on the basis that there is no significant evidence of opposition to the UFUA application by Commanders”. 20

Is the group to be covered fairly chosen?

[23] I am satisfied that the group who would be covered if the proposed scope order is in place would be a group which is “geographically, operationally or organisationally distinct.” It would be geographically distinct in that it would be confined to the RDNS operations in Victoria. It would be operationally and organisationally distinct in that all employees would be covered except perhaps for a small number of senior managers.

[24] If the alternative approach favoured by RDNS was to prevail then this group would be split into two. I am not required to determine whether or not the groups proposed by RDNS are fairly chosen because RDNS is not seeking a scope order. This might become a relevant issue if the Agreements are being considered for approval. However, it is a relevant consideration if the consequence of making the order sought is that the group to be covered is likely to be more fairly chosen than the alternative proposed by RDNS. This is clearly a matter which is relevant to the considerations of fairness and efficiency required by Section 238(4)(c) and I will deal with this shortly.

Efficiency and Fairness.

[25] The parties raised a number of matters in submissions and evidence which go to the question of fairness and efficiency which I will now consider. I will deal with some particular efficiency and fairness matters separately even though many of the considerations which go to these matters overlap and considerations of efficiency are also applicable to considerations of fairness and vice versa.

Business reasons in support of two agreements.

[26] RDNS argue that there have been changes to the organisation since the making of the 2007 Agreement which support the split into two agreements. Ms Hogan gave evidence that these changes are telephony based referral services in Tasmania, home based services in New Zealand, work place based health checks in Victoria, home based services in NSW, national telephony based advice service relating to pregnancy and maternity support, and telephony based incident report service in South Australia. 21 The 2007 Agreement and the proposed agreement(s) do not cover employees outside of Victoria. Separate agreements for nurses employed by RDNS have been reached in NSW and Tasmania. The evidence is that there are very few RDNS employees outside of Victoria who are not nurses. Some of these changes have meant that there is an increase in the diversity of the business in Victoria but still employing the same types of workers - nurses, Customer Service Operators, and allied professionals in particular. However, RDNS argue that there have been some significant changes in the role of the Head Office support functions as they are now supporting a much more diverse business including beyond Victoria.

[27] My assessment based on the evidence particularly of Ms Hogan, Acting CEO; Ms Muchow, Senior Advisor Human Resources; and Ms Sutton, Executive General Manager Corporate is that RDNS management are seeking to split the agreement principally because:

• The changes in the business over the past three years mean that the Head Office now has a wider role in supporting an expanding and diversifying business including beyond Victoria.



• RDNS management are also increasingly employing people and looking to employ people in Head Office from a wider range of backgrounds including non-health industry backgrounds.



• RDNS management perceive the 2007 Agreement as “nurse centric” and they are looking to achieve changes in the agreement as far as it relates to Head Office employees to remove nurse centric and health industry conditions and introduce conditions more consistent with the broader private sector market for those who work in the corporate and administration sectors.

[28] There was nothing in the evidence that convinced me that there was any change to the business as it affected Allied Health Professionals and Customer Service Operators that justified or necessitated them moving to different conditions from those that applied to nurses and Community Care Aides. All parties agreed that revised classification structures needed to be finalised. I am satisfied from the evidence that the principal justification for splitting the agreements relates to the role of the Head Office employees.

[29] Ms Hogan, Ms Muchow and Ms Sutton were asked to identify nurse centric conditions which RDNS would like to see changed in the separate agreement for Allied Health Professionals, Customer Service Operators and Head Office employees. Ms Hogan identified shorter shifts, conditions to facilitate working from home and the ability to offer market based rates to attract employees to some of the corporate services roles. Ms Muchow identified portability of certain forms of leave which are contained in the 2007 Agreement, consistent with many health industry agreements, as a condition which may not be appropriate for Head Office employees. Ms Muchow said that the removal of this condition could provide for higher wage rates in the proposed separate agreement. Ms Sutton referred to the ability to offer market based rates, the possibility of differential wages outcomes and productivity measures which relate to the Head Office employees. Some of these matters have been raised by RDNS in their log of claims for the negotiations of the agreement. 22

[30] A number of the senior managers gave evidence that they would like to see these conditions change but they did not give evidence about the views of other employees in respect to these matters. The HSU submitted that some of the proposed changes were cuts in conditions. The senior managers gave evidence that they believed that the ANF would oppose these changes in conditions and that these changes would therefore be unlikely to be achieved without separate agreements. However, there was no evidence that there had been any attempt to raise these matters with the ANF or that the ANF opposes these changes applying specifically to Head Office employees. There was no evidence about the response to these matters in the negotiation process for the agreement(s).

[31] There is no evidence before me of a history of resistance to essential organisational or business change by employees or their unions at RDNS. There is no evidence before me of a history of unreasonable use of majority or minority power by particular occupational, geographical or organisational groups within RDNS to achieve or block the aspirations of other employees or essential organisational or business change sought by RDNS. In these circumstances it would be inappropriate to grant or refuse to grant a scope order to facilitate or obstruct the particular bargaining agenda of either party.

[32] I am satisfied that in seeking two agreements RDNS are genuinely motivated by a desire to seek to bargain changes to conditions particularly applicable to Head Office employees to better meet the changes to the organisational structure and objectives of the business. However, I am not satisfied that this creates a basis for finding that bargaining will be fairer and more efficient if there is bargaining for two separate agreements. This is particularly because there is insufficient evidence that the conditions relevant to the changed circumstances are not able to be pursued in a single agreement and also because the separation would include not just Head Office but also Allied Health Professionals and Customer Services Officers.

Fairness of selection of the two bargaining groups by RDNS.

[33] For the purposes of this consideration I will refer to the group consisting of nurses, enrolled nurses and Community Care Aides as the nurses group and the group consisting of Allied Health Professionals, Head Office, administration, Customer Service Operators and support employees as the HSU group. RDNS argues that the two groups are organisationally, operationally and geographically distinct.

[34] The RDNS argues organisational distinctness because the nurses group are the delivery care team who are responsible for the delivery of clinical care directly to patients and the HSU group regard the nurses group as their clients and they provide services to support the nurses in delivering clinical care and or general administrative or support functions. With one exception RDNS says the allied health professionals are not responsible for the delivery of direct clinical care.

[35] RDNS argues operational distinctness because the nurses group provide up to 6 hours per shift face to face client time and work on a 24x7 roster whilst the HSU group are day workers and have limited face to face client time.

[36] RDNS argues geographical distinctness because nurses are dispersed and predominately on the road delivering clinical care whereas the administrative employees are concentrated at Head Office and do not generally have client contact except for Health Professionals who have limited client contact.

[37] The HSU strongly challenges the position of RDNS on these matters.

[38] The evidence reveals that these distinctions are not as clear as suggested by RDNS. My findings in respect to the evidence and submissions in respect to geographical, operational or organisational distinctness are as follows.

[39] I am satisfied from the evidence that the Allied Health Professionals are expected to have up to two hours contact per shift with clients whereas the nurses who are in the field are expected to have up to six hours contact per shift with clients. This is a difference of degree and is not distinctness. The evidence shows that the Allied Health Professionals work very closely with nurses and that nurses and Allied Health Professionals are mutually dependent and that integration of their work is essential for the provision of services to the clients.

[40] Not all nurses are on the road in direct physical contact with clients. There are some nurses in the Head Office where they are a small minority amongst the other administrative and support employees. There are other nurses who work alongside Customer Service Operators and counsellors working by telephone. There are some Allied Health Professionals in the regional offices where they are a small minority amongst the others who provide service to clients namely the nurses. There are some nurses who work under the close supervision of other nurses or who primarily provide support and advice to other nurses just as there are some Allied Health Professionals who have that relationship with the nurses.

[41] The division two nurses and Community Care Aides have different roles to the division one nurses and it has not been established that this difference is any less than the distinction between the roles of nurses and Allied Health Professionals.

[42] Not all nurses work 24x7. There are nurses at Head Office and a number at the Customer Contact Centre who do day work. Not all of those in the HSU group do day work. In the Customer Contact Centre a significant group of the Customer Service Operators work afternoon and night shifts alongside nurses and some of the Customer Service Operators and some of the nurses only do day work. I am satisfied that the work of the nurses and the Customer Service Operators and counsellors in the Customer Contact Centre is closely integrated and interdependent.

[43] I am not satisfied having considered all of the evidence that the two groups are operationally or geographically distinct.

[44] It is possible that a degree of organisational distinctness may be able to be established in that the particular job classifications of the two groups are able to be identified and distinguished. However, given that the two groups have common managers and work in such an integrated manner the separation of the two groups has a high degree of artificiality to it. If what was proposed was a separate Head Office agreement or a separate Customer Service Centre agreement then the situation would be different.

[45] The evidence, including position descriptions, revealed little commonality between the roles, skills and qualifications of Head Office administration and support employees and the Allied Professionals and the Customer Service Operators. The degree of difference between nurses and Head Office administration and support employees appears to be similar to the degree of difference between Allied Health Professionals and Head Office administration and support employees. Allied Health Professionals and Customer Service Operators are generally much more closely integrated with the work of nurses than they are with Head Office administration employees.

[46] After considering the evidence I am satisfied that the RDNS did consult with employees in the HSU group directly about the issue of their intention to pursue separate agreements. However, this was primarily through information style sessions. I am satisfied that there was feedback from these information sessions from employees in opposition to the concept of separate agreements. 23 I am satisfied that RDNS had effectively made its decision to proceed with separate agreements regardless of the feedback from employees. This is illustrated by the fact that the Board sign off occurred before the information sessions had been completed. I am not satisfied that feedback from employees influenced the decision of RDNS to proceed with separate agreements. Of course there is no requirement for RDNS to get approval from employees about its bargaining agenda including its agenda in respect to the scope of any agreement. I deal further with the views of employees later.

[47] On balance, I am satisfied that the consequence of making the order sought is that the group to be covered is more fairly chosen than the alternative proposed by RDNS. This consideration favours the granting of the order sought.

Efficiency of the bargaining process

[48] The HSU contend that the bargaining will be more efficient if there is bargaining for a single agreement because there are a large number of common issues and common claims in the log of claims issued by both the employer and the unions. The HSU contend that it will be more efficient to deal with most issues at common meetings rather than having to deal with these issues twice in two separate negotiation processes. It is not in contention that the HSU and RDNS are involved in both sets of negotiations in the event that there is bargaining for two agreements. The HSU contend that if there are special issues, such as the classification structures, then separate meetings or sub-committees can meet to work on these matters.

[49] The RDNS contends that there is a need to address the particular matters affecting the HSU group and that given that the nurses are the overwhelming majority of employees insufficient attention will be paid to the HSU group specific matters unless the bargaining is split. In support of this argument the RDNS point to the fact that the 2007 Agreement contains a significant number of matters that are applicable only to the nurses group but very few matters which are applicable only to the HSU group. They say this shows that the negotiations for the 2007 Agreement were dominated by the interests of the nurses group. RDNS suggest that if the scope order was granted there would be an increase in the cost in releasing representatives to attend negotiating meetings due to the fact that there would be time spent on matters which were not relevant to all attendees and this would result in the need for more negotiation meeting time for those employee representatives.

[50] RDNS point to the fact that the classification structure for the HSU group in the 2007 Agreement is the classification structure in the relevant Awards whereas the classification structure for the nurses group is tailored to the needs of the RDNS business in the 2007 Agreement. The 2007 Agreement provides at Clause 4.5 that “within 12 months of the lodgement of this agreement RDNS and HSU will review the administrative/clerical classification structure within RDNS” and at Clause 4.7 that “within 12 months of the lodgement of this agreement RDNS and HSU will review the Health Professional classification structure within RDNS.” RDNS gave evidence that this process did not in fact occur. RDNS gave evidence that they had difficulty getting the HSU to engage in the process. RDNS and HSU gave evidence that they are now in the process of implementing this commitment and are committed to the inclusion of new classification structures as part of the agreement which is currently being negotiated.

[51] RDNS point to the need to finalise the new classification structures and also to the need to finalise the method by which the relevant Awards are incorporated into the proposed agreement(s) as a reason why the negotiations would be more efficient if separated. The clear implication was that the negotiations for the agreement for the nurses group could be delayed by this process and this was why bargaining would be more efficient if it were separated into bargaining for two agreements. The ANF in their correspondence 24 also expressed concern at potential delays in incorporating the relevant awards for a single agreement as opposed to two separate agreements.

[52] RDNS raised the possibility that some items that they have on their bargaining agenda which are of particular relevance in RDNS’ view to the HSU group may be difficult to achieve in a single bargaining unit because of the opposition of the ANF to those items. They also raised the concern that the ANF may not be prepared to devote adequate time to consideration of these specific HSU group bargaining issues.

[53] I have carefully considered all the points raised about bargaining efficiency. In my view the concept of “efficiency” in bargaining is not narrowly about administrative efficiency or minimising the time and resources required for a particular output. In my view the concept of an efficient bargaining process also includes the concept of an effective process for all parties involved. I am satisfied that:

• A significant number of the important matters in the bargaining are common between the two groups and this is illustrated by the number of common issues on the respective logs of claims. I do not consider variations in the degree of ambit in particular union claims as detracting from the commonality of bargaining agenda.



• There is no reason why the specific issue of classification structures for the HSU group could not be expedited through a separate sub-committee of the main bargaining process in the event that there was bargaining for a single agreement. It is common in bargaining for issues affecting a local group to be dealt with separately off line or through a sub-committee or working party. The same approach could be adopted to ensure consideration of other HSU group specific issues in respect to which RDNS is concerned the nurses group may not be prepared to devote adequate time.



• The lack of inclusion of many “non-nurse” specific matters in the 2007 Agreement is not a significant argument as to why bargaining would be more efficient with two separate bargaining processes. There is no evidence that there was any demand from the HSU on behalf of employees or from RDNS for more “non-nurse” specific matters in the negotiation of the 2007 Agreement.



• The inclusion of a commitment to finalise new classification structures for the HSU group rather than the actual inclusion of such structures in the 2007 Agreement does not demonstrate that the bargaining for the 2007 Agreement was inefficient. It is commonplace for parties in agreements to agree on a process to finalise a complicated matter rather than finalise the matter in an agreement.



• The failure to finalise the HSU group’s new classification structures during the life of the 2007 Agreement had nothing to do with the fact that there was a single agreement rather than two agreements. The RDNS could have taken stronger actions to pursue this matter if they had wished including through utilisation of the 2007 Agreement’s disputes settlement procedure.



• The process of incorporation of relevant Awards is a legitimate matter between the parties in bargaining. This process does involve some potential detailed work for the parties which may take some time. However, there is no evidence that it is any more complicated or difficult in respect of the HSU group than in respect of the nurses group. I do not perceive any obstacles to this work being progressed off line or through separate working groups or sub-committees.



• Nothing has been raised in evidence or in submissions that suggests that the relationships between the HSU group and the nurses group are hostile such that a single bargaining unit would be inefficient or ineffective. In any case the HSU is involved in the bargaining for the agreement with the nurses group. There was no problem of this sort reported in respect to the negotiations for the 2007 Agreement and no change since that date which has been alluded to.



• There is no evidence that the bargaining process for the 2007 Agreement was delayed, inefficient or ineffective due to the fact that it was for a single agreement. This makes arguments that it will be more efficient if there are two negotiation processes less convincing.

[54] I dealt earlier with the RDNS concern that some bargaining items may be difficult to achieve in a single bargaining unit because of the opposition of the ANF and concluded that this did not affect the efficiency or fairness of the bargaining process.

[55] I am not satisfied that the bargaining will be more efficient if there is bargaining for two separate agreements. I am satisfied that given the number of common issues and the integration of the work of a number of the employees in the two groups that efficiency in bargaining will be enhanced by bargaining for a single agreement. I do not suggest that the efficiency gains are likely to be great but considerations of efficiency in the bargaining process on balance favour the granting of the order sought.

Fairness and the views of employees and the affect on bargaining power.

[56] Consistent with the MFB Full Bench decision the views of employees may be an important consideration in assessing fairness and whether or not it is reasonable in all of the circumstances to make a scope order.

[57] The HSU argues that the bargaining will be fairer if there is bargaining for one agreement rather than two. HSU argue that the evidence in respect of the views of employees is that they oppose splitting the agreements. The HSU also say that it was an issue of fairness that the decision was taken without properly considering the views of affected employees. HSU argue that the splitting of the agreement is a case of “divide and conquer.” They argue that separately, each occupational group would have less bargaining power particularly if a resort to protected industrial action is required. HSU witnesses expressed concern that wage outcomes might be lower and or delayed due to separation from the strength of the ANF and the nurses. HSU expressed concern that bargaining concessions sought by RDNS in respect to the HSU group are more likely to be extracted if the bargaining is separated. HSU also expressed concern that some of their members are in the nurses group and others are in the HSU group. This denies the HSU membership the opportunity to act in concert.

[58] The RDNS argue that bargaining will be fairer if the bargaining is separate because the HSU group specific issues will be able to be dealt with more effectively. This includes some specific bargaining agenda items sought by RDNS. RDNS argue that the big majority of employees do not oppose separate agreements and they say that the position of the ANF supports this. Several RDNS senior managers who gave evidence said that as employees covered by the agreement they favoured separate agreements. Some of the managers also said that employees had not expressed opposition to separate agreements to them directly. RDNS say that they did consult with employees about the issue of separate agreements and considered their input prior to the making of a final decision.

[59] I am satisfied that the HSU is reflecting the views of its members in seeking the scope order. I found the evidence of the HSU members and of the HSU organiser to be direct and convincing in this respect. They gave evidence of meetings and discussions with other employees at which they were able to ascertain their views on this matter. In my view it is consistent with the approach taken by the MFB Full Bench to have regard to these matters and to the absence of evidence of employee opposition to the position taken by HSU as a bargaining representative. 25

[60] However, although I was convinced that the HSU is representing the views of its members in this matter, I had no evidence or submission before me about the density of HSU union membership amongst those employees it is eligible to represent. The evidence of the HSU members about employee views only related to a proportion of the employees in particular groups affected.

[61] A union during a bargaining process may be understandably reluctant to reveal the level of its membership to the employer. However, in proceedings before FWA in respect to bargaining matters it is commonplace for FWA to accept evidence on a restricted basis or in the alternative for unions to present petitions or meeting records or other evidence to demonstrate the level of support for their position amongst employees regardless of union membership. However, I cannot make a positive finding that the majority of employees eligible to be members of the HSU support the HSU position because of the weakness of the evidence.

[62] There are many more employees eligible to be members of the ANF than are eligible to be members of the HSU at RDNS. I have no reason to doubt that the ANF represents the views of its nurse members at RDNS. However, I have no positive evidence to be able to make a finding about the majority of nurses eligible to be members of the ANF. The ANF neither supports nor opposes the scope order. I take from this that the ANF do not believe that the making of the order would make the bargaining significantly more or less efficient and fair. In this context not much weight should be given to the concern the ANF express in their letter about the potential delays from dealing with the award incorporation issues I dealt with earlier.

[63] There are circumstances in which it may be appropriate to make a scope order on fairness grounds because a minority group of employees have a strong and justifiable view that they will be disadvantaged in bargaining if the order is not made. Commonly this will be because their interests might be outvoted by or ignored by the majority or alternatively because their bargaining capacity may be unfairly weakened by their separation from others.

[64] The RDNS submit that the HSU group will be disadvantaged because they may be outvoted or ignored by the majority who are nurses. I am not convinced by this argument particularly given that I am satisfied that the HSU are representing the views of their members and they are expressing a contrary view. RDNS did not produce any evidence that employees, apart from members of the senior management team, shared their concerns or that satisfied me that there was a real prospect that their concerns would be realised. On the other hand, the HSU submitted and provided evidence from members that their bargaining strength will be weakened and the employer is more likely to achieve its bargaining agenda if the HSU group is separated. It is possible that the bargaining strength of the nurses group may also be affected if the scope order is made or not made. There is no evidence from any nurses or from the ANF or from RDNS that supports a proposition that the bargaining strength of the nurses will be affected by the making of the order or not making the order.

[65] The evidence of the HSU suggests that some employees are concerned that if the bargaining is separated RDNS may reach an agreement first with the nurses group, an agreement for the HSU group may be delayed, employees in the HSU group might achieve a lesser pay increase or a delayed pay increase, and the bargaining power of the HSU group on these issues would be decreased. These are all possible outcomes of separating the bargaining. However, given the weakness of the evidence about the views of employees and the lack of any evidence of industrial history at RDNS that supports the concerns it is difficult to draw strong conclusions about the validity of these concerns. There is no evidence of anything occurring in the current bargaining process which demonstrates that these fears are likely to be realised.

[66] Given the integration of the work of the Allied Health Professionals and Customer Service Officers with the nurses group I am satisfied that the bargaining strength of those employees is likely to be weakened by their separation from the nurses group.

[67] There was no evidence before me about the extent to which the employees in the HSU group are low paid or with weak bargaining power.

[68] There was no evidence that suggested that the prospects of reaching an agreement or two agreements would be enhanced or impeded by the making of the scope order or the failure to make the scope order. The HSU and RDNS expect an agreement or agreements will be reached.

[69] It is difficult to draw any reliable conclusions about the likely impact on bargaining fairness for the Head Office group of separated bargaining. The evidence and submissions of RDNS suggest that RDNS believe that their bargaining position in respect to certain matters which they believe would be opposed by the ANF would be enhanced by separate bargaining. However, for the reasons discussed earlier it is difficult to draw any reliable conclusion about this matter.

[70] I consider that the granting of the scope order may have a tendency to positively affect fairness for the HSU group taking into account what is known about the views of affected employees. However, I cannot make a finding in respect to this matter due to the weakness of the evidence about employee views. In considering the effect on the bargaining strength of parties I am satisfied that there will not be a significant negative effect on fairness to the employer or employees and their unions in the bargaining process if the order is granted. I am also satisfied that the prospects of reaching an agreement or agreements will not be adversely affected by the making of the order sought.

Conclusion.

[71] There are a number of considerations I have set out earlier which favour a conclusion that making the order will make the bargaining fairer and or more efficient that if the order was not made. In addition there are two considerations where no positive finding can be made. However, in respect to those two considerations I am not satisfied that making the order would adversely affect the ability of bargaining to meet the needs of the changing structure and objectives of the business in the Head Office area. I am also satisfied that there will be no significant negative impact on fairness in respect to the bargaining strength of employees or the employer or the prospects of reaching an agreement if the order was made. Taking all of the matters into consideration I am satisfied that the test in Section 238(4)(b) is met in that I am satisfied on balance that bargaining will at least be fairer and more efficient than it would be if no order were to be made. The order would promote the fair and efficient conduct of the bargaining.

[72] Given that all the other pre-requisites for the making of the order sought have been met I must now pursuant to Section 238(4)(d) consider whether or not it is reasonable in all the circumstances to make the order. The making of an order is discretionary. I consider that it is appropriate in all the circumstances to make the order.

[73] The scope order will be made and will operate from today’s date and will cease operation in accordance with Section 239(b) of the Act. The order will provide that the proposed Agreement cover the Royal District Nursing Service (RDNS) and all employees of the RDNS in the State of Victoria employed in classifications within the scope of Clause 1.4(b) of the Royal District Nursing Service, Australian Nursing Federation, Health Services Union and Staff Collective Agreement 2007-2011.

COMMISSIONER

Appearances:

Mr Langmead appeared on behalf of the Health Services Union of Australia (the Applicant.

Mr McNab appeared on behalf of the Royal District Nursing Service (the Respondent).

Hearing details:

2011
Melbourne
17 November

 1   Exhibit RDNS 4, Attachment SM4 and Exhibit RDNS 3.

 2   Exhibit HSU 8.

 3   Exhibit RDNS 3, Attachment RH1

 4   Ibid, Attachment RH2.

 5   Exhibits RDNS 2 and HSU 1.

 6   Exhibits HSU 2 and HSU 3.

 7   Exhibit HSU 4.

 8   Exhibits HSU 5 and HSU 6.

 9   Exhibit RDNS 3.

 10   Exhibit RDNS 4.

 11   Exhibit RDNS 5.

 12   Exhibit RDNS 6.

 13   Exhibit RDNS 7.

 14   Exhibit RDNS 8.

 15   Exhibit RDNS 1.

 16   Ibid.

 17   Exhibit RDNS 3, Attachment RHI.

 18 (2010) FWAFB 3009.

 19   Ibid at paras 53 to 56.

 20   Ibid at para 64.

 21   Exhibit RDNS 3, para 13.

 22   Exhibit RDNS 3, Attachment RH4.

 23   Exhibit RDNS 4, paras 13 to 15.

 24   Exhibit RDNS 1.

 25 (2010) FWAFB 3009 at paragraph 64.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR517021>