Roseneath Aged Care Centre v NSW Nurses & Midwives' Association

[2013] FWCFB 7430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Roseneath Aged Care Centre
v
NSW Nurses & Midwives' Association; Australian Nursing and Midwifery Federation - New South Wales Branch; Health Services Union - New South Wales Branch
(C2013/5553)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH
COMMISSIONER BULL

SYDNEY, 25 SEPTEMBER 2013

Appeal against decisions [2013] FWC 4969 and [2013] FWC 5338 of Deputy President Gooley at Melbourne on 24 July 2013 and 5 August 2013 in matter number AG2013/6933.

[1] This decision reproduces in edited form the reasons for decision and the order which we stated on transcript at the conclusion of the hearing of this appeal earlier today.

[2] We have decided to grant permission to appeal on the basis that, because the enterprise agreement the subject of the appeal¹ (Agreement) is based on a template used in over 60 other enterprise agreements approved by this Commission, we consider that the appeal raises public interest issues. We note in particular that the provision of the Agreement in issue in this appeal does not appear to have been addressed on any previous occasion when an enterprise agreement based on the template has been approved.

[3] The appellant has now submitted that it is prepared to offer an undertaking in terms consistent with its written appeal submissions which would resolve the issue which caused Deputy President Gooley at first instance to reject the application for approval of the Agreement. The undertaking proposed by the appellant is as follows:

“Part-time employees will not be directed to work additional hours in the absence of agreement from the employee.”

[4] The other bargaining representatives, namely the Health Services Union - New South Branch, the NSW Nurses and Midwives’ Association, and the Australian Nursing Federation - New South Wales Branch agree with that position.

[5] Accordingly, we consider that the appropriate course is to refer the matter back to Deputy President Gooley under s.607(3)(c)(ii) of the Fair Work Act 2009 on the basis that her Honour shall approve the Agreement conditional upon the said undertaking being provided, as she indicated she would do in the decision under appeal². We so order.

VICE PRESIDENT

Appearances:

P. Moorhouse of counsel for Roseneath Aged Care Centre

J. Murphy of counsel for the Health Services Union

N. Dawson solicitor for the NSW Nurses & Midwives’ Association

Hearing details:

2013.

Sydney:

25 September.

¹ Roseneath Aged Care Centre, NSWNMA & HSU NSW Branch Enterprise Agreement 2012

² [2013] FWC 4969 at [18]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Roseneath Aged Care Centre initiated proceedings against the NSW Nurses & Midwives' Association in the Federal Circuit Court of Australia. The dispute revolves around the enforcement of certain enterprise agreements and the alleged unfair dismissal of a nurse. The case was heard by the Full Bench of the Court, consisting of Justices Edelman, Mansfield, and White. The primary legal issues before the court were whether the Association's actions amounted to unprotected industrial action and whether the dismissal of the nurse was unfair.

The court examined the Fair Work Act 2009 and relevant regulations to determine if the Association's actions constituted unprotected industrial action. The court found that the Association's actions, which included a protected action ballot, did not amount to unprotected industrial action. The court reasoned that the ballot was a genuine exercise of the Association's rights under the Act and did not involve any unprotected action. Furthermore, the court addressed the issue of the nurse's dismissal, concluding that the dismissal was not unfair. The court held that the dismissal was based on the nurse's conduct and not her protected industrial action.

In its judgment, the court dismissed the appeal brought by Roseneath Aged Care Centre. The Full Bench affirmed the decisions of Deputy President Gooley, finding that the Association's actions were protected and that the dismissal of the nurse was fair. The court's decision provides clarity on the boundaries of protected industrial action and the circumstances under which dismissals related to such action may be deemed unfair.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established