Kaizen Hospitals (Mount District) Pty Ltd v Australian Nursing Federation

[2012] FWA 8225

[2012] FWA 8225

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604—Appeals of decisions

Kaizen Hospitals (Essendon) Pty Ltd; Kaizen Hospitals (Malvern) Pty Ltd; Kaizen Hospitals (Mount District) Pty Ltd
v
Australian Nursing Federation
(C2012/1050, C2012/1051, C2012/1052)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 21 SEPTEMBER 2012

Appeal against decision - application for stay order.

[1] These are applications for stay orders by Kaizen Hospitals (Essendon) Pty Ltd, Kaizen Hospitals (Malvern) Pty Ltd and Kaizen Hospitals (Mount District) Pty Ltd (the Companies). The orders are sought in relation to appeals lodged against decisions 1 of Deputy President Hamilton pursuant to s.185 of the Fair Work Act 2009 (the Act). In his decisions, the Deputy President approved 3 enterprise agreements2 (the Agreements).

[2] It was not contested by the parties that the conventional approach to the determination of a stay application is to consider whether there is a sufficiently arguable case that permission to appeal would be granted and the appeal would succeed, and whether the balance of convenience favours the application.

[3] In each of the present matters it is alleged in the Notices of Appeal that the Deputy President erred in approving the Agreements. It is alleged that the Companies did not agree to the terms of the relevant Agreements, did not appoint the employer bargaining representative who made the applications, and did not authorise the company representative who made the statutory declarations in support of approval to do so. As a consequence, it is said in each case that the Deputy President reached an erroneous finding that a valid application had been made pursuant to s.185 of the Act, and erred in his finding in each decision that the application had been made by the relevant party.

[4] The appeals raise somewhat novel issues as to the authority of company employees/agents to negotiate enterprise agreements, the authorisation of bargaining representatives by employers, the requirements of the Act for the approval of enterprise agreements by employers, and the operation of ss.793 and 794 of the Act. Some of these matters are directed at whether there were valid applications for the approval of the Agreements before the Deputy President. Counsel for the Companies indicated that it would be sought to lead new evidence in the appeals so as to address these issues. Although it is difficult to make any findings about these matters in the absence of such evidence, for the purposes of determining the stay applications it would seem that there is at least an arguable case both for the granting of permission to appeal and that the appeals would succeed.

[5] In relation to the balance of convenience, if a stay is not granted the Companies will be required to make substantial payments to employees, including some back payments. In this regard, reference was made by counsel for the Companies to the following passage in Edwards v Telstra Corporation Ltd:

“We only wish to note that previous Commission decisions have suggested that where the intervention of the Commissioner has imposed an obligation or duty on a party then prima facie the balance of convenience would favour a stay being granted. One reason why such an approach has been adopted is that the creation of a requirement to pay moneys under an award which is subsequently quashed gives rise to the practical difficulty of recovering moneys paid to what may be a large number of employees covered by the relevant award...” 3

[6] In the circumstances of the present matters, where wage increases and back payments would need to be made under the Agreements to some 130 nurses employed by the Companies, I am satisfied that the balance of convenience favours the granting of the stay orders.

[7] The Australian Nursing Federation (ANF) submitted that if stay orders are made and the appeals are unsuccessful, then the payments provided under the Agreements should be paid by the Companies with appropriate interest. The Companies submitted that if such an order for the payment of interest was to be made, the interest should only apply from the date that the Agreements were to come into operation. Given the circumstances of the appeals, including the bargaining over several months between the ANF and those purporting to represent the Companies, I consider that an order for the payment of interest should be made in the terms sought by the ANF, with operative effect from the date that the Agreements came into operation.

[8] An order will be issued in the terms set out in this decision.

[9] Having regard to the matters raised in the appeals, and the considerable time and effort which has been invested in the negotiations for the Agreements by the ANF and others, it is recommended that there should be discussions between the ANF and the Companies in regard to the current situation with the appeals and the Agreements. It is understood that the bargaining process for such agreements was initiated in November 2011 by the service of a log of claims on the Chief Executive Officer of the Companies.

SENIOR DEPUTY PRESIDENT

Appearances:

S Benson of counsel and P Ludeke solicitor for the Companies.

A Duffy of counsel, N White solicitor and B Megennis for the Australian Nursing Federation.

Stay hearing details:

2012.

Sydney and Melbourne (video hearing):

September 21.

 1   [2012] FWAA 7066; [2012] FWAA 7068; [2012] FWAA 7071.

 2   Essendon Private Hospital and the Australian Nursing Federation and Health Services Union of Australia Nurses Enterprise Agreement 2012 (AE896209); Malvern Private Hospital and the Australian Nursing Federation and Health Services Union of Australia Nurses Enterprise Agreement 2012 (AE896211); Melbourne Eastern Private Hospital and the Australian Nursing Federation and Health Services Union of Australia Nurses Enterprise Agreement 2012 (AE896213).

 3 (1998) 109 IR 371 at 373 (Ross VP, Watson SDP, Blair C).

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