New South Wales Nurses' Association v Macquarie Hospital Services Pty Ltd

[2010] FWA 6372

[2010] FWA 6372

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

New South Wales Nurses' Association
v
Macquarie Hospital Services Pty Ltd
(B2010/3319)

VICE PRESIDENT WATSON MELBOURNE, 24 AUGUST 2010

Application for a bargaining order - good faith bargaining requirements - responding to proposals in a timely manner- Fair Work Act 2009 ss 228, 229, 230, 231.

Introduction

[1] This decision, edited from a decision on transcript on 19 August 2010, concerns an application by the New South Wales Nurses’ Association (NSWNA) for a bargaining order pursuant to s 229 of the Fair Work Act 2009 (the Act). The orders are sought against Macquarie Hospital Services Pty Ltd.

The relevant legislation

[2] Section 228 of the Act sets out the good faith bargaining requirements:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

[3] Section 229 of the Act provides:

“229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.

Multi-enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

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

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

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

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.”

[4] Section 230 of the Act provides:

“230 When FWA may make a bargaining order

Bargaining orders

(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) FWA must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(c) a scope order in relation to the agreement is in operation;

(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3) FWA must in all cases be satisfied:

(a) that:

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”

The Positions of the parties

[5] The parties have addressed the history of negotiations and evidence was provided of correspondence between the parties which indicated their positions in considerable detail. 1 A precondition for issuing any order is that the applicant must indicate the nature of its concerns in writing and must indicate the alleged breaches of the good faith bargaining requirements and provide an opportunity for those matters to be addressed. It appears in this matter that the correspondence between the parties has addressed the procedural issues for bargaining and that the nature of the allegations has been made clear to the employer in this matter.

[6] It is also clear that to a significant extent there is agreement to participate in a bargaining process and endeavour, within a process which is clearly not a simple or easy one, to pursue those negotiations and develop an agreement. It appears to me that despite the efforts of the parties there has been considerable delay in putting and responding to proposals during the negotiations. In the interests of facilitating further negotiations, attention should be given to that part of the good faith bargaining requirements that relate to responding to proposals and putting positions to the other bargaining representatives in a timely manner.

[7] As I have indicated, despite the disagreement as to the making of orders, there is nevertheless an element of joint commitment towards developing an agreement and agreement as to certain steps to be undertaken to further those negotiations. The employer has indicated that it is preparing its position in the form of a full enterprise agreement. Despite indications that it would be forthcoming by now, it has not been produced.

Conclusions

[8] I am satisfied that the pre-requisites for the making of an order have been established. Based on what the parties have indicated is in progress and they propose in the future, and in order to ensure that those steps do properly occur, I will make an order whereby both sides would prepare a full and comprehensive draft enterprise agreement to apply to the enterprise concerned, provide that to the other side, and then have discussions in relation to the drafts.

[9] I will make an order that full draft enterprise agreements be provided by both sides by 7 September 2010. I would also propose that the parties ensure that the draft agreement is comprehensive in the sense that it also addresses the position relating to salaries and salary increases over the course of the agreement and specify the proposed length of the agreement.

[10] The content of such a document of course, is entirely up to each party to propose. I expect that it will be proposed for the purposes of negotiations on a completely without prejudice basis. In no sense am I concerned about the content of such a document - simply in ensuring that there is a proper process adopted to further these negotiations in accordance with the good faith bargaining requirements in the Act.

[11] The provision of comprehensive draft enterprise agreements also enables the NSWNA to advance its position in relation to the duties of patient assistant services, whatever that position might be. Its position can be encompassed within a draft agreement proposed by the Association. I will also make an order that the parties meet on a fortnightly basis commencing within 14 days of the provision of the draft agreements.

[12] I do not propose at this stage to provide for formal report-backs for the purpose of this application. However, I do reserve the rights of either party to seek a re-listing of this matter during the negotiation process.

[13] The parties raised the issue of assistance in negotiations. I note that either party may make application for the assistance of Fair Work Australia in the negotiations under s 240 of the Act. If such an application were deemed to be necessary by either side, that would trigger a process of involvement of the Tribunal in discussions directly with the parties on the content of their negotiations. This matter is necessarily of a different nature. It relates to the processes of negotiations and is directed to ensure that the good faith bargaining provisions of the Act are complied with.

[14] The orders outlined above are issued with this decision. 2

VICE PRESIDENT WATSON

Appearances:

P Kelly with K Rynne and R Kennedy for New South Wales Nurses’ Association

L Street with L Goddard for Macquarie Hospital Services Group Pty Ltd

Hearing details:

2010.

Sydney.

19 August.

 1   Exhibit K1

 2   PR500749

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