Victorian Hospitals' Industrial Association v Australian Nursing Federation
[2011] FWA 9068
•23 DECEMBER 2011
[2011] FWA 9068 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Victorian Hospitals' Industrial Association
v
Australian Nursing Federation
(B2011/4052)
COMMISSIONER JONES | MELBOURNE, 23 DECEMBER 2011 |
Nurses Agreement in Public Health Sector – application for a bargaining order – good faith bargaining requirements.
Introduction
[1] This decision relates to an application by the Victorian Hospitals Industrial Association (the VHIA) for orders under section 229 of the Fair Work Act 2009 (the Act) arising from a proposed nurses agreement in the Victorian Public Health Sector (the Application).
[2] The VHIA is an organisation of employers registered under the Fair Work (Registered Organisations) Act 2011 and an industrial association within the meaning of the Act. Relevantly for the purposes of this decision, the VHIA was granted a Single Interest Employer Authorisation (SIEA) on 5 October 2011 under s.248 of the Act, in respect of health service providers (Employers), each of whom is responsible for the provision of health services to Victorian residents under the Health Service Act 1988 (Vic). Each of the Employers are Bargaining representatives within the meaning of the Act.
[3] The proposed nurses agreement is to cover employees employed by Employers as Registered Nurses and Midwives, Enrolled Nurses and Assistants in Nursing (other than those employed solely or predominantly in the provision of psychiatric services) (Employees).
[4] The Australia Nursing Federation (ANF) is the bargaining representative for the Employees.
[5] The ANF and the VHIA have been bargaining since September 2011 for a proposed nurses agreement in the Victorian Public Health Sector to replace the Nurses’ (Victorian Public Health Sector) Multiple Business Agreement 2007-2011, whose nominal expiry date was 1 November 2011.
[6] The Orders sought by the VHIA include the following terms:
For the period referred to in paragraph 6 of this Order, the ANF (by its officers, employees, delegates, key members and howsoever otherwise) must:
(a) keep confidential all correspondence or documents exchanged between the ANF, VHIA and the Department of Health in relation to proceeding B2011/3853 (s240 conciliation), where such correspondence and documents are marked confidential;
(b) use correspondence and documents as described in (a) above only for the purposes of the s240 conciliation; and
(c) not disclose or allow to be disclosed to the media, or to the members of the ANF or the VHIA, or elsewhere in the public domain, what has been discussed in the s240 conciliation conferences. For the avoidance of doubt, this does not prevent a statement being made about whether progress is being made in negotiations, if it is made clear that progress does not mean agreement, nor does it prevent the ANF from reporting back and providing information on progress to the ANF Victorian Branch Committee of Management.
Statutory Context
[7] Section 229 appears in Part 2-4 of the Act in Division 8 which deals with Fair Work Australia’s (FWA) role in facilitating bargaining. That Division also sets out the good faith bargaining requirements relevant to the application. The relevant provisions of Division 8 are as follows:
“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.
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.
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).
231 What a bargaining order must specify
(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:
(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;
(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;
(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;
(d) such matters, actions or requirements as FWA considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.
(2) The kinds of bargaining orders that FWA may make in relation to a proposed enterprise agreement include the following:
(a) an order excluding a bargaining representative for the agreement from bargaining;
(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;
(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);
(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).
(3) The regulations may:
(a) specify the factors FWA may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and
(b) provide for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.
[8] Section 255 of Division 11, Part 2-4 of the Act is relevant and provides:
255 Part does not empower FWA to make certain orders
(1) This Part does not empower FWA to make an order that requires, or has the effect of requiring:
(a) particular content to be included or not included in a proposed enterprise agreement; or
(b) an employer to request under subsection 181(1) that employees approve a proposed enterprise agreement; or
(c) an employee to approve, or not approve, a proposed enterprise agreement.
(2) Despite paragraph (1)(a), FWA may make an order that particular content be included or not included in a proposed enterprise agreement if the order is made in the course of arbitration undertaken when dealing with a dispute under section 240.
Note: FWA may only arbitrate a dispute under section 240 if arbitration has been agreed to by the bargaining representatives for the agreement (see subsection 240(4)).
[9] It is appropriate to refer to the Objects of Part 2-4 and the relevant objects of the Act. The objects to Part 2-4 are contained in s.171 of the Act:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.
[10] The relevant objects of the Act are relevantly expressed:
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
........................................................................
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;
[11] Section 229(4) of the Act establishes the jurisdictional pre-requisites for the making an application for a bargaining order. S.230(1) of the Act establishes three conditions for the making of an order. The first is that an application has been made. The second is that the requirements of the section have been met. The third is that FWA is satisfied that it is reasonable in all the circumstances to make the order. S.230(2) relevantly, requires that I am satisfied that the Employers have agreed to bargain.
The VHIA Application and Submission
[12] The VHIA alleges that the ANF has not met or is not meeting the good faith bargaining requirement that a bargaining representative refrain from capricious or unfair conduct that undermines collective bargaining: s.228(1)(e).
[13] The VHIA submits that it has met the pre-requisites for the making of a bargaining order application under s.229(4) of the Act; in that it has concerns that the VHIA has not met the good faith bargaining requirements; it has given written notice to the ANF setting out those concerns by way of correspondence sent by email and dated 6 December 2011. The VHIA submits that the ANF response, by letter dated 7 December 2011, to its concerns is not an adequate response as it denies any wrongdoing.
[14] The principle matter upon which the VHIA relies is an email sent on 2 December 2011 by Mr Paul Gilbert, Assistant Secretary, ANF, Victorian Branch to the Chief Executive Officers (CEO’s) and Directors of Nursing (DON’s) of each of the Employers. Attached to the email were two documents; one, a document headed, “ANF proposal - without prejudice and confidential - 28 November 2011”; the other, a document headed, “CONFIDENTIAL BETWEEN THE PARTIES, IN ACCORDANCE WITH THE PROTOCOLS AGREED IN CONCILIATION PROCEEDINGS BEFORE COMMISSIONER GOOLEY IN FAIR WORK AUSTRALIA PROCEEDINGS B2011/3853.” (the Confidential Documents)
[15] The VHIA’s complaint in relation to this action is twofold. The first is directed to the content of the email, being a description of the ANF’s view of what occurred in conciliation conducted pursuant to s.240 of the Act. The second is directed to, the distribution of the Confidential Document to other persons, without the VHIA’s consent. The VHIA argues that this action is a breach of the “protocols” reached between the parties in relation to conciliation proceedings under s.240 of the Act.
[16] The protocols referred to are contained in correspondence exchanged between the VHIA, the ANF and the Department of Health on 9 November 2011 and 10 November 2011. The protocols are expressed as:
1. The VHIA as bargaining representative for the employers covered by the single interest employer authorisation dated 5 October 2011 (SIE Authorisation), and the ANF as bargaining representative for its members covered by the SIE Authorisation, will participate in the conciliation.
2. In recognition of the role of the Department of Health (Department) as the manager and funder of the public health sector, officers of or persons nominated by the Department are entitled to attend any and all bargaining meetings and conferences in the proceeding.
3. Save for the involvement of the Department as referred to above the conciliation conferences are ‘closed sessions’.
4. The parties to these conciliation proceedings may exchange correspondence or documents on a confidential basis (including those confidential documents provided in previous negotiations), in relation to the conciliation. Such correspondence and documents marked as confidential will be kept confidential. The documents may only be used for the purposes of this proceeding.
5. The parties to these conciliation proceedings accept that his (sic) conference is conducted in private. However both parties and the Department are required to report back and provide information on progress to their respective principles/boards/BCOM. The parties to these conciliation proceedings will not disclose or allow to be disclosed to the media, or to their members, or elsewhere in the public domain, what has been discussed in the conferences except the parties may disclose whether progress is being made. When providing such advice the parties must make it clear that progress does not mean agreement.”
(Protocols)
[17] The VHIA submits that the effect of theseprotocols are two -fold:
- Any document marked confidential will be kept confidential and used only for the conciliation proceedings; and
- Discussions which occur during the course of the conciliation proceedings are private and the contents of the discussions are not to be divulged outside the conciliation proceedings, except for the purposes of the VHIA reporting to its principals ( beings a group from its membership) and Board and the ANF reporting to its Bargaining Committee of Management (BCOM)
[18] This construction of the clause derives, the VHIA submits, from the application of the approach identified by Jusitice Madgwick in Kucks v CSR Ltd 1:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.
[19] The VHIA submits that the words used in s.228(1)(e) of the Act should be construed according to their ordinary meaning by reference to dictionary definitions. Thus they argue that the sending of the email by Mr Gilbert on 2 December 2001 was capricious as it was “an unanticipated, accountable deviation from conspicuous undertakings that were given voluntarily at the commencement of the conciliation proceedings.” The communication by the ANF of confidential information and information about closed sessions was, VHIA argue, a “deliberate and inexplicable repudiation of the Protocols and thus constitute unfair conduct.”
[20] This conduct is said by the VHIA to undermine collective bargaining by its adverse effect on the free exchange of positions in conciliation proceedings and hence negotiations. Such protocols, it is said, are typical in negotiations of the kind the VHIA and ANF are engaged in and are there for the purpose of encouraging free exchange. The conduct by Mr Gilbert has the effect of disturbing the trust which is fundamental to facilitating the bargaining process.
[21] The Bargaining Order sought (see paragraph [16] above) is necessary, VHIA submits, in order to ensure compliance with the protocols and enable further conciliation proceedings which are proposed to be continued to continue in good faith.
[22] An undertaking proffered by the ANF (discussed below) is, the VHIA contends, not sufficient to deal with the breach of the good faith bargaining requirement as it does not concede there was a breach of the protocols and does not provide any comfort that the ANF will continue to adhere to the protocols.
ANF Submissions
[23] The ANF denies that the conduct of Mr Gilbert, in sending out the email dated 2 December 2011, amounts to capricious or unfair conduct that undermines collective bargaining. The ANF’s argument that the conduct was not inconsistent with the protocols is set out in the following extracts from its Outline of Submission:
15 Paragraph 5 required the parties to report back and to provide information on progress to their “respective principles/boards/BCOM”. The reference to “principles/boards” relates to the VHIA’s requirement to report back to their member hospitals. Properly understood this included reporting to the hospital’s management teams, which inevitably include the respective CEOs and DONs.
16 On 2 December2011 Mr Gilbert sent an email for the personal attention of CEOs and DONs only. The email was clearly marked as such.
17 CEOs and DONs are part of the senior management of the employer hospitals and no doubt provide and receive information from the VHIA
18 The purpose of the email is clear on its face. As stated by Mr Gilbert, “this has become extremely difficult for the ANF in that what is being said at the negotiation table by VHIA appears very different from what we hear from directors of nursing and chief executives that we speak to”. The very basis for the email was to ensure that the VHIA was complying with its requirement to report back and to provide information on progress to the respective principles/boards.
19 The attachment to the email was expressly provided on the basis that it was to remain confidential.
20 In sending the email and the attachment the ANF did nothing more than ensure that the persons to whom the VHIA were obliged to report had proper information arising out of the discussions. It did what the VHIA was required expressly to do itself.
[24] Even if the action was inconsistent with the protocols, the ANF submits that the conduct was not capricious. Relying on the ordinary dictionary meaning of caprice as a “sudden change of mind without apparent or adequate motive” 2, The ANF argues that the conduct was part of a considered act; namely, directing “the provision of proper information to those who were otherwise entitled to receive it.” The ANF further argue that the conduct was not “unfair” as it “was not inequitable in all the circumstances, nor deceptive nor dishonest in some way.” In any event, it is submitted by the ANF, the conduct does not undermine collective bargaining for two reasons. First, “collective bargaining” applies to a collective of employees not a bargaining representative derived from a single interest authorisation. Second, there is no relevant undermining in the ordinary sense of the word; being to ‘affect injuriously or weaken by secret or underhand means; to weaken insidiously, destroy gradually.’3
[25] Finally, the ANF submit that a bargaining order ought not be issued for two reasons:
- The Order sought by the VHIA is in the form of a mandatory order requiring the ANF to engage in certain conduct and should therefore be carefully considered to ensure they produce a fair result. In this case, the ANF submits, the orders would affect the status of the ANF as a bargaining representative and extend beyond the alleged breach; and
- The Undertaking by the ANF (ANF Undertaking) communicated by its solicitors in correspondence dated 14 December 2011 to the VHIA’s solicitors.
[26] The ANF Undertaking is in the following terms:
Undertaking
1. The VHIA asserts in proceedings B2011/4052 in FWA that, by giving to relevant employers (through their CEOs and DONs on a confidential basis) confidential information and information about closed sessions recording the employers’ position (put on their behalf in the conciliation proceedings in B2011/3853 by their bargaining representative), the ANF is in breach of good faith bargaining requirements.
2. The ANF notes with concern that the VHIA is relying on this alleged breach to justify its refusal not to participate fully in further conciliation proceedings.
3. The ANF denies any breach of the good faith bargaining requirements.
4 .However, in order to resolve these proceedings and to facilitate the further conciliation proceedings, the ANF undertakes to the VHIA not to give the relevant employers information of the kind provided in the conciliation and referred to in par.1
Consideration
Jurisdictional pre-requisites
[27] The VHIA must first establish that it has complied with the pre-requisites for the making of an application for bargaining order under s.229(4) of the Act. I am satisfied that the VHIA has concerns that the ANF has not met or is not meeting the good faith bargaining requirements: s.229(4)(a)(i). I am satisfied that correspondence from the VHIA to the ANF dated 6 December 2011 sets out the VHIA’s concerns and that it considers the ANF’s response is inadequate. I am further satisfied that an application has been made for a bargaining order: s230(1)(a) and that the Employers have agreed to bargain: s230(2)(a).
Good Faith Bargaining Requirements
[28] In Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Tahmoor Coal Pty Ltd 4 (Tahmoor Coal) the Full Bench observed:
[24] Whether a party observes or fails to observe the good faith bargaining requirements set out in s.288(1) is to be determined in light of all of the relevant circumstances. While at one level this is stating the obvious, it is appropriate in view of the submissions in the appeal to indicate that the question will rarely be decided by reference to one action or series of actions. Equally it would be undesirable to read into the legislation concepts which do not already appear in it for the purpose of explaining its operation. That approach is likely to lead to error in the construction and application of the provisions.
Was the conduct inconsistent with the Protocols
[29] The first issue to determine is whether the sending of the email by Mr Gilbert dated 2 December 2011, together with the Attachments, was inconsistent with the Protocols.
[30] I am satisfied that the correct approach to be adopted in construing the Protocols is to adopt the approach identified in Kucks Case. The protocols were agreed to by participants in enterprise bargainingfor the purpose of Conciliation proceedings conducted by FWA to facilitate enterprise bargaining. The industrial participants describe the protocols as “arrangements agreed yesterday before Commissioner Gooley”. There is no doubt, on the face of the letters from the ANF, the VHIA and the Department of Health to each other, that these arrangements were agreed at a conciliation proceeding dated 9 November 2011.
[31] The ANF argues that the word “principals” in the phrase “their respective principals/boards/BCOM” in paragraph 5 of the Protocols is a reference to the individual Employer members of VHIA, hence the provision of information by Mr Gilbert, in the email to the CEO’s and DON’s of Employers was not conduct inconsistent with the Protocols. The ANF submits that the word “principals” is used to refer to “agents” and the VHIA, as a SIEA bargaining representative, is an agent for its principals, being Employer members. The words used, the ANF submits, are ambulatory in nature and the Protocols should be construed with this in mind.
[32] In my view the reasoning of the ANF cannot be supported bearing in mind the ordinary meaning of the paragraphs of the Protocols and approaching the construction of the clause in a practical way.
[33] The word “principals” must be read in the context of both the phrase in which it is located; being “their respective principals/boards/BCOM”, and the context of paragraph 5 as a whole. The phrase read as a whole is referring to groups, not the membership at large of the respective parties, to whom “each party is required to report back”. In the case of the ANF, it is the Bargaining Committee of Management and, in the case of the VHIA, it is its board and/or principals. Whatever the principals are, they are clearly a group smaller than the whole of the Employer members who are part of the SIEA. This construction is supported by the reference later on in the paragraph to groups the parties to the conciliation proceedings, “will not disclose or allow to be disclosed ... what has been discussed in the conferences”. These are specified as including “their members”. The reference is to the parties’ members and is, be construed, having regard to the industrial context, as members of the ANF and (Employer) members of the VHIA.
[34] Properly construed paragraph 5 reflects an agreement that the contents of discussions at the conciliation conferences, other than statements that progress is being made, are not to be disclosed to the parties’ members but may be disclosed to smaller groups as part of the parties reporting obligations.
[35] As noted above the email sent by Mr Gilbert to CEO’s and DON’s to Employers attached two documents, both marked confidential. One being an ANF proposal for “Ratio Application” and the other, the VHIA Response to this proposal. In respect of these attachments the email stated:
- While the ANF accepts that documents exchanged in conciliation are confidential, we do not believe confidentiality could or should extend to the employers on whose behalf VHIA negotiates. As you would be aware, while VHIA is your appointed bargaining representative, each of you remain a bargaining representative in your own right. For that reason I have attached a copy of the document provided to ANF by VHIA in conciliation before Commissioner Gooley on 1 December 2011, and to assist you in addressing your nurses and midwives when ANF holds local rallies at your workplace in coming weeks. This document is to remain confidential.
[36] The email also contained commentary on the discussions in conciliation, the relevant parts being:
- I write regarding the recently adjourned negations between the ANF and your bargaining representative the VHIA, and in particular in regards to nurse to patient ratio flexibility (a copy is attached titled “Ratio Application”) that the VHIA openly stated was very significant and indeed that ANF had moved further with you and a power point presentation as to its content was provided in that meeting. Yet three days later the proposal was dismissed out of hand in favour of what is essentially the original position of the VHIA on 20 October 2011, that had already been rejected at that time. As you can imagine this does not appear to ANF to be bargaining in good faith. In return for our concession, VHIA were to respond as to improved and extended nurse patient ratios - VHIA stated that they supported neither the improvement or extension of nurse to patient ratios. I know many of you have told me directly that you don’t hold that view.
This has become extremely difficult for the ANF in that what is being said at the negotiating table by VHIA appears very different from what we hear from Directors of Nursing and Chief Executives that we speak to. For example many Directors of Nursing say that they would not countenance unlimited short shifts, Certificate III health assistants in unlimited numbers and clinical areas, removal of ratios etc, yet at the bargaining table your bargaining representative is doing just that.
[37] Clearly, the ANF understood that “documents exchanged in conciliation are confidential” but nevertheless forwarded a copy of the confidential documents on the basis that each Employer was a bargaining representative and with the directive that the documents be treated as confidential.
[38] The content of the email:
- discloses that at the conciliation proceeding the ANF “provided a new position as to ratio flexibility”;
- alleges that the position being put by the VHIA at the bargaining table is different from the position put from CEO’s and DON’s to the ANF outside the conciliation proceedings and gives an example of the alleged difference.
[39] I am satisfied, having regard to the email and it’s attachments that:
- the distribution by Mr Gilbert to CEO’s and DON’s of Employer members of the VHIA of documents marked by each party as “confidential” was inconsistent with paragraph 4 of the Protocols; and
- the distribution by Mr Gilbert to CEO’s and DON’s of Employer members of the VHIA of an email containing information about what had been discussed in conciliation proceedings was inconsistent with paragraph 5 of the Protocols.
S.228(1)(c) - Good Faith Requirements
[40] The Full Bench in Tahmoor Coal observed in respect of s.228(1)(e) of the Act:
The terms of that provision require not only that conduct undermines freedom of association or collective bargaining but also that the conduct be capricious or unfair. Of course whether conduct is capricious or unfair can only be ascertained by an examination of all of the circumstances in a particular case. 5
[41] Thus, in the circumstances of this matter, s.228(1)(e) of the Act fixes on conduct that undermines collective bargaining being conduct which is capricious or unfair.
[42] It is relevant to note that negotiations have been proceeding in accordance initially with a Memorandum of Understanding and subsequently in conciliation proceedings pursuant to s.240 of the Act. In total the parties have met 25 times.
[43] The main sticking points between the parties in the negotiations are: wages; workload management, including flexibility for workload management at the local workplace level; rostering; and skills mix, including the role of Nursing Assistants the sticking points in the negotiations. 6
[44] The dispute has had a high public profile and the negotiations and conciliation have been slow and “the principal sticking point has been workload management and in particular nurse/patient ratios”. 7
[45] The action of Mr Gilbert occurred immediately following a conciliation proceeding at which one of the main sticking points, nurse patient ratios was discussed with no agreement. 8 At the conclusion of the conciliation proceedings on 1 December 2011, “Commissioner Gooley informed the parties that she intended to adjourn the s240 Conciliation for approximately two weeks.”9 In his letter to the ANF, dated 2 December 2011, Mr Djoneff, Chief Executive Officer, VHIA, states, “The matters central to the dispute between us are well known to you and the current inability of the parties to bridge the gap that has led to the suspension of the Conciliation proceedings before Commissioner Gooley.”10
[46] Conciliation proceedings resumed on 15 December 2011, although it is to be noted that the VHIA, expressed its reservations “about the continuation of conciliation before its application for good faith bargaining orders is finally determined” 11. Further Conciliation proceedings have been scheduled for December 2011 and January 2012.
[47] There is no doubt that the action taken by Mr Gilbert was unanticipated and inconsistent with arrangements the parties had agreed upon in respect of their negotiations in the conciliation proceedings. I can make no finding as to the reason or motive for the action as Mr Gilbert was not called as a witness.
[48] I am also satisfied, having regard to the evidence of Mr Djonoff, that the VHIA was deeply concerned by the action and the effect it might have on future negotiations between the parties.
[49] However, I am not satisfied that the conduct undermines collective bargaining and that it is capricious or unfair conduct. I am unable to be so satisfied for the following reasons.
[50] Whilst it is apparent that the forwarding of the email (and attachments) on 2 December 2011 to CEO’s and DON’s of Employers was inconsistent with the Protocols, conduct of this type has not been repeated.
[51] The ANF has provided an undertaking to the VHIA in relation to the conduct in order to facilitate further conciliation proceedings (see [26] above). I note the VHIA’s view that the ANF Undertaking does not provide sufficient assurance that conduct of the type, which is the subject of this Application, will not be repeated. I have, however, had regard to the Statement of Counsel on behalf of the ANF in the proceedings in reference to the Undertaking:
PN273 THE COMMISSIONER: Yes. Is it an undertaking that has the effect that the conduct that was complained about, which is the distribution of documents marked "confidential" to employers who are members of the VHIA and the distribution of information - discussions that have occurred in the conciliation proceedings - to members of the VHIA will not occur again? Is that the effect of the undertaking?
PN274 MR WHITE: Yes.
[52] Finally, conciliation proceedings resumed on 15 December 2011 with further conciliation dates scheduled in December 2011 and January 2012.
[53] Consequently, the VHIA’s Application for Bargaining Orders is dismissed.
COMMISSIONER
Appearances:
Mr E. White of Counsel and Mr J. McKenna of Counsel - Australian Nursing Federation
Mr F. Parry SC and Mr Snaden of Counsel - Victorian Hospitals’ Industrial Association
Hearing details:
Friday, 16 December 2011
Final written submissions:
1 66 IR 182 at 184. Madgwick J was considering the approach taken to the interpretation of an award. This approach was subsequently adopted by the Full Court of the Federal Court of Australia in United Firefighters’ Union of Australia and Anor v Metropolitan Fire and Emergency Service Board(2006) FCAFC 18 as the correct approach to all industrial instruments.
2 The Macquarie Dictionary, 5th Edition.
3 Ibid.
4 [2010] FWAFB 3510
5 At [7].
6 Victorian Hospitals’ Industrial Association v ANF[2011] FWAFB 8165 at [5].
7 Correspondence from Mr A Djoneff, Chief Executive Officer, VHIA to ANF dated 2 December 2011 in response to request from ANF by letter dated 1 December 2011 for the VHIA to make an offer for a proposed agreement, Tabs 62 and 65, Exhibit VHIA 3
8 Witness Statement of Mr Djoneff, Exhibit VHIA 2, at [124]
9 Witness Statement of Mr Djoneff, Exhibit VHIA 2, at[114]
10 Op Cit
11 Correspondence from VHIA to Commissioner Gooley dated 9 December 2011, Tab 82 VHIA 3
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