By Lisa Burrell
Industrial action in the public sector and at various large enterprises Australia-wide has stolen the industrial relations headlines of late. However, one ‘sleeper’ element of the overhauled Fair Work system of workplace relations legislation re-emerged in late December.
The Victorian branch of the Australian Nurses Federation (ANF), while simultaneously involved in the recent public sector industrial action, has applied to Fair Work Australia (FWA) for a low-paid bargaining authorisation to cover roughly 850 private sector medical centre employers that employ practice nurses.
If successful, such an order would force the employers to bargain in good faith with the ANF for a multi-enterprise agreement that would cover all the parties and potentially a large part of the sector in Victoria.
This application follows a log of claims served upon over 1000 such medical centres in June 2011, and “has been substantially prompted by the very absence of employer claims or responses to [ANF’S] claims”. The claim requested the employers contact the ANF to bargain for an enterprise agreement, with the following just an indication of what was sought:
- A 20 per cent pay increase over three years;
- 12 per cent superannuation;
- 14 weeks paid parental leave;
- six months long service leave after 15 years of service;
- small businesses (less than 15 employees) obliged to pay redundancy pay;
- 2.5 weeks per year of service for redundancy, to a maximum of 37.5 weeks;
- paid volunteer time;
- increased personal leave benefits (i.e. after five years of service, 21 days per year); and
- elder care leave, study leave, professional development leave.
Perhaps understandably, it is apparent many medical practices were not overwhelmingly convinced that bargaining with the ANF on such terms was in the best interests of their enterprise. The ongoing uncertainty for employers regarding bargaining obligations and processes due to the JJ Richards decisions is also at play.
In the current landscape, merely responding to the ANF may have been seen to initiate the bargaining process and all the related obligations under the Fair Work Act 2009. However, if this recent application is successful, employers will be forced to bargain in any instance – perhaps having to contend with bargaining alongside many other organisations for a multi-employer collective agreement.
It is clear any combination of the above claims would increase the costs of running a practice substantially, further limiting the flexibility to offer and maintain services, particularly in rural areas. Indeed, there is a very real possibility such a claim may result in a reduction of such services, thereby indirectly increasing costs for Victorians needing medical assistance. It remains to be seen whether Medicare would bridge such a gap on an ongoing basis, if at all.
This is contrasted with employers traditionally paying more to attract staff to rural areas – however, employers to date have been able to negotiate directly with employees for terms and conditions. Given the number of employers reporting payments above the award terms, it may well prove difficult for the ANF to demonstrate that they are dealing with ‘low-paid’ workers.
Should the ANF be able persuade FWA this is so, a ‘pattern’ agreement containing the proposed inflated base terms and conditions would be a significant increase for affected practices and restrict the flexibility employers have to bargain ‘one on one’ with staff.
Finally, this FWA application and the legal battle that may ensue brings forward the real possibility of the ANF dragging practice centre nurses into the wider public-sector nurses dispute, requiring two orders from FWA to terminate the unlawful industrial action.
This application, combined with feedback from employers indicating a lack of a concerted desire to bargain by the nurses themselves, raises the question whether this is a genuine pay and conditions dispute or, alternatively, a ‘back door’ attempt by the ANF to broaden its influence in the rural and private sector where it has not otherwise been able to do so through traditional membership and bargaining campaigns.
The real challenge in Victoria is to develop and maintain a first class health care system that is accessible and affordable. A ‘one size fits all’ approach across the state, requiring organisations to bargain collectively, severely constrains their ability to make enterprise-level decisions about running their practices. These tasks are difficult enough, without elements of the union movement keen to expand its power in the nursing sector.