DISPUTE RE NEGOTIATIONS FOR REPLACEMENT INDUSTRIAL AGREEMENT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Department of Health

APPLICANT

-v-

Australian Nursing Federation, Industrial Union of Workers Perth

RESPONDENT

CORAM Senior Commissioner R Cosentino

DATE Friday, 18 November 2022

FILE NO/S C 40 OF 2022

CITATION NO. 2022 WAIRC 00792

Result Interim Order issued

Representation

Applicant Ms J Withers and Ms M Bendotti

Respondent Ms B Burke of counsel, Ms J Reah and Ms K Bohn

Interim Order

WHEREAS on 4 November 2022, the applicant, the Department of Health, filed an application under s 44 of the Industrial Relations Act 1979 (WA) (IR Act) for a compulsory conference to seek the assistance of the Commission to progress negotiations for an industrial agreement to replace the WA Health System - Australian Nursing Federation - Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses - Industrial Agreement 2020;

AND WHEREAS in seeking the conference, the Department of Health informed the Commission that:

(a) The respondent, The Australian Nursing Federation, Industrial Union of Workers Perth (ANF), commenced negotiations with the Department of Health for a replacement agreement on 13 July 2022 with a log of claims that included approximately 42 claim items;

(b) The parties participated in three bargaining meetings between 13 July 2022 and 5 October 2022;

(c) The ANF held a mass meeting of members employed in the public hospital system and covered by the Agreement on 12 October 2022, at which those members resolved to take coordinated and escalating industrial action from 23 October 2022;

(d) On 17 October 2022, the Department of Health made an offer for a replacement agreement which included:

(i) A commitment to introduce nurse/patient ratios, that being the ANF’s highest priority claim in its log of claims; and

(ii) An offer to increase wages in line with State Government Wages Policy;

(e) The ANF rejected the offer;

(f) The parties held further bargaining meetings between 21 October 2022 and 31 October 2022, which resulted in refinements to the nurse/patient ratio component of the Department of Health’s offer;

(g) On 1 November 2022, the Department of Health made a second offer to the ANF with enhanced conditions around nurse/patient ratios; and

(h) On 4 November 2022, the ANF rejected the Department of Health’s offer;

AND WHEREAS the Commission conducted compulsory conferences on 7 November 2022, 9 November 2022, 11 November 2022, 14 November 2022 and 15 November 2022 to assist the parties in progressing negotiations for a replacement industrial agreement;

AND WHEREAS on 14 November 2022 the Department of Health made an application for orders to suspend the planned industrial action in the form of rolling stoppages and bed closures from 16 November 2022, and that application was scheduled to be heard and determined on 15 November 2022;

AND WHEREAS before the Department of Health’s application was heard, in conference on 15 November 2022, the Department of Health provided a further offer of a replacement agreement to the ANF containing terms that:

(a) Were an improvement on the previous offers made by the Department of Health;

(b) In relation to the ANF’s key claim, being nurse/patient ratios, were in terms sought by and agreed to by the ANF before the offer was made;

(c) Included additional provision for a new preceptor allowance of $1,200 to eligible nurses and midwives, as agreed to by the ANF in lieu of claims for increased wages above State Wages Police before the Offer was made; and

(d) Included several other new terms and conditions concerning breaks, leave and flexibility requests;

(Offer).

AND WHEREAS the Offer was made on the condition that the ANF called off all current and planned industrial action, make no further claims and seek members’ support for it being accepted;            

AND WHEREAS on 15 November 2022 the ANF agreed in principle to the Offer, and agreed it would communicate the Offer to its members and conduct a ballot of members for approval of the Offer. In doing so, the ANF implicitly, if not expressly, agreed not to disparage the Offer or discourage its approval by members;

AND WHEREAS:

a) the ANF met with members at Fiona Stanley Hospital on 14 November 2022 to communicate the offer;

b) the ANF called off the current and planned industrial action on 14 November 2022;

c)  the ANF advertised to members their ability to participate in a ballot to vote for or against acceptance of the offer opening at 3:00 pm on 18 November 2022 and closing on Tuesday 22 November 2022; and

e) in public statements and prior to the ballot of members opening, the Secretary of the ANF, Ms Janet Reah, described the offer as “not good enough,” “unfair" and “divisive.”

f) in public statements Ms Janet Reah has informed members of the ANF that if the majority of members vote against acceptance of the offer, nurses will go on a state-wide, day long strike.

AND WHEREAS the ANF advised the Commission that it has received thousands of email from members about the Offer and members have expressed their dissatisfaction with the Offer;

AND WHEREAS the Commission is satisfied that the public statements are liable to mislead members as to:

a)  The role of the ANF and Ms Reah’s role in eliciting the Offer in the course of conferences;

b)  Whether they are voting for industrial action, or whether they are voting on the Offer;

c)  The accepted conditions of the Offer, including the agreement not to make further claims or to take industrial action; and

d)  The realistic options for gaining improved terms and conditions for nurses if the Offer is not approved by members.

such that the ballot, should it proceed immediately, would not enable members of the ANF to participate in the ballot in a fully informed and considered way.

AND WHEREAS the Commission is satisfied that the statements referred to in (e) and (f) above and the events leading to the conduct of the ballot have diminished if not severely damaged the ability of the parties to continue to negotiate for a replacement agreement in good faith in the short term.

AND WHEREAS the Commission is satisfied that the ANF’s ability to communicate with its members and conduct a ballot of members at this time is hampered by internal divisions within the ANF and its membership;

AND WHEREAS in the above circumstances, the Commission is of the opinion that conduct of a ballot of the members at this time is likely to cause the deterioration of industrial relations between the parties and in particular, to frustrate the prospects of the in principle agreement reached on 15 November 2022 being implemented or, failing the implementation of the in principle agreement, the parties being able to continue negotiations in good faith;

AND WHEREAS the Commission is of the opinion that orders under s 44(6)(ba)(i) of the IR Act are necessary to prevent the deterioration of industrial relations in respect of the negotiation of a replacement agreement until further conciliation or arbitration resolves the matter; and that orders under s 44(6)(ba)(ii) are necessary to enable conciliation or arbitration to resolve the matter;

NOW THEREFORE the Commission pursuant to the powers vested in it by s 44(6) of the IR Act hereby –

ORDERS:

1. THAT the ANF, by its officers, employees and members, must defer the conduct of any ballot, poll or survey of members to gauge the level of support for acceptance of the Offer until 9:00 a.m. on 28 November 2022;
2. THAT from the time of issue of this Order and the conclusion of any ballot conducted in compliance with this Order, the ANF, by its officers and employees, are not to make any public statements, commentary or media statements, whether in writing or verbally, which:
   1. portray the ANF, its officers or employees as maintaining a claim for a replacement agreement with terms that are better than the Offer;
   2. direct or encourage in any way its members to vote for or against acceptance of the Offer.
3. That the parties have liberty to apply at short notice to vary, extend or amend these orders.

RECOMMENDS:

4. THAT the ANF disable its Facebook page comments until the conclusion of any ballot conducted in compliance with the above Orders;
5. THAT the parties not engage in any further bargaining until 11:59 pm on 8 January 2023.

SENIOR COMMISSIONER R COSENTINO