Health Services Union-Victorian No. 1 Branch v Epworth HealthCare

[2013] FWC 5788

[2013] FWC 5788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Diana Asmar; Health Services Union-Victorian No. 1 Branch
v
Epworth HealthCare
(C2013/4180)

Health and welfare services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 15 AUGUST 2013

Hand Hygiene and Fingernail policy for hospital employees - whether pertaining to the employment relationship

[1] On 2 May 2013 the Health Services Union (HSU) filed an application for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure. The dispute was filed under the dispute settlement procedure in the Epworth Healthcare Health and Allied Services Enterprise Agreement 2011-2014 1. Clause 12.1 of the agreement provides:

‘Unless otherwise provided for in this Agreement, a dispute or grievance about a matter arising under this Agreement or a matter pertaining to the employment relationship or the National Employment Standards other than termination of employment must be dealt with in accordance with this clause ...’

[2] The dispute was said to relate to a notification of grievance lodged by the HSU regarding the implementation of a ‘Hand Hygiene Protocol requiring staff that have non-patient direct contact to be required to adhere to the expected protocol, specifically not using nail polish/artificial nails’.

[3] It was agreed that an employer jurisdictional objection would be determined ‘on the papers’, following the provision of written submissions by each side. Written submissions were filed in accordance with the agreement.

[4] The HSU submits that the matter was ‘pertaining to the employment relationship’ within clause 12.1 and 12.5 of the dispute settling procedure in the agreement. Epworth submitted that ‘the wearing of nail polish or false nails is not a matter that the Commission can arbitrate it is not a matter pertinent to the employment relationship. The real question that is alive is that of the policy adopted by Epworth in relation to hand hygiene.’ It submitted that its policy was rationally based and necessary to protect the health of patients, because hospital cleaners and others have indirect patient contact, and that nail polish and false nails are a real and established health risk in the scientific literature. It put a number of other submissions.

[5] Neither side addressed the issue of the statutory provisions which enable the Commission to exercise powers under a dispute settlement procedure in an agreement, namely ss.738-739. I am authorised by those provisions to exercise certain powers under the disputes procedure, including relating to disputes pertaining to the employment relationship.

[6] I have taken account of the submissions put. It is clear that safety issues, whether of the employee concerned or other persons present in a workplace, can be a matter pertaining to the employment relationship. It is open to the employer to make reasonable and lawful directions to an employee relating to such matters, and the employer is in fact required to do so in some circumstances: Ferraloro v. Preston Timber Pty Ltd 2, Turner v. The State of South Australia3. Similarly, it has been consistently held that enterprise agreements and awards made to prevent and settle an industrial dispute can deal with a range of safety matters including first aid and similar issues4.

[7] On the submissions before me some aspects of the present application may pertain to the employment relationship within clauses 12.1 and 12.5. I am not satisfied that I may dismiss the application at this stage of the proceedings: see the decision of the Full Federal Court in Re Alcoota Land Claim No.146 5. This is a preliminary ruling, and the parties will be at liberty to put further submissions later in the proceedings, whether on jurisdiction or other issues: Commsec Trading Limited and Others6, United Firefighters’ Union of Australia v Country Fire Authority7. There may indeed, as Epworth claims, prove to be insurmountable problems with the applicant’s case: XPT Case8. However, at this stage I dismiss the jurisdictional objection.

[8] I will list the matter for further conciliation.

DEPUTY PRESIDENT

Appearances:

Ms D Asmar, Mr N Katsis, Ms J Nakat and Mr N Murphy of the Health Services Union.

Ms L Powne, Ms L Rowlands, Ms S Rundle of the respondent and Mr M Addison for the respondent

Hearing/Conference details:

2013

Melbourne

May 13, June 17, and July 3

Final written submissions:

2013

June 25 Applicant

July 18 Respondent

 1   [2011] FWAA 6869

 2 (1982) 56 ALJR 839, High Court of Australia

 3 (1982) 56 ALJR 872

 4   Full Bench of the AIRC, Section 109 Review Decision, Print R2700, 12 March 1999

 5 (1998) 82 FCR 391, Full Court of the Federal Court, per Northrop, Cooper, Mansfield JJ at 394

 6   PR945431, 6 April 2004, a Full Bench decision.

 7   [2012] FWAFB 8238, Full Bench, 24 September 2012

 8 (1984) 295 CAR 188

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