DISPUTE RE NEGOTIATIONS WITH THE AUSTRALIAN NURSING FEDERATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES The Minister for Health incorporated as the Board of hospitals formerly comprised in the Metropolitan Health Service Board and incorporated as the Board of the WA Country Health Service, under s7 of the Hospitals and Health Services Act 1927 (WA)

APPLICANT

-v-

The Australian Nursing Federation, Industrial Union of Workers Perth

RESPONDENT

CORAM Acting Senior Commissioner P E Scott

DATE Wednesday, 20 February 2013

FILE NO/S C 175 OF 2013

CITATION NO. 2013 WAIRC 00089

Result Orders and recommendation issued

Representation

Applicant Ms K Worlock and Mr M Warner

Respondent Mr M Olson

Interim Orders and Recommendation

WHEREAS this is an application pursuant to s 44 of the Industrial Relations Act 1979 (the Act) filed on 19 February 2013 by which the applicant seeks interim orders that members of the respondent union (the ANF) cease industrial action taking place in public hospitals; and

WHEREAS on 10.30am on Wednesday 20 February 2013, the Commission convened an urgent conference for the purpose of conciliating between the parties, and

WHEREAS at the conference, the applicant informed the Commission that:

1. The parties had commenced negotiations for an agreement to replace the Registered Nurses and Enrolled Mental Health Nurses – Australian Nursing Federation – WA Health Industrial Agreement 2010 (the ANF Agreement) which expires on 30 June 2013;

2. The parties agreed to meet fortnightly commencing on 16 January 2013 to negotiate a new agreement;

3. The parties had met on three occasions since 16 January 2013;

4. With the calling of a State General Election, to be held on 9 March 2013, the Caretaker Conventions came into effect on 6 February 2013;

5. By that time the negotiations had not progressed to the point where it is possible to seek the required approval from the State Cabinet to make an offer to the ANF;

6. The applicant advised the ANF that no offer could be made until after the State Election on 9 March 2013;

7. The ANF had asserted that the Caretaker Conventions have no practical effect and do not prevent an offer being made;

8. On Monday, 18 February 2013, the ANF held a meeting of members employed in public hospitals;

9. At that meeting, members of the ANF passed a resolution to close one in five beds  in every ward or unit in public hospitals, including where possible, Emergency Department cubicles, with specified exceptions;

10. On 18 February 2013, following the respondent’s members’ meeting, nursing staff returned to metropolitan public hospitals and initiated industrial action characterised as “closing beds”;

11. The effect of the industrial action is that otherwise fully staffed hospital beds are not being utilised and nursing staff are refusing to provide nursing care to patients who would otherwise be accommodated in those beds; some patients have been turned away from staffed beds and are being returned to the Emergency Departments, and most remain in the Emergency Departments until such time as a bed becomes available;

12. Public hospitals are attempting to deal with the situation, however patient care and safety is being significantly compromised;

13. The current industrial action has had a cumulative effect on the number of patients who can safely be accommodated in Emergency Departments, and this has significant potential to adversely affect clinical outcomes for patients;

14. The industrial action not only directly concerns the parties but has a wider significance for the community in this State in particular but not limited to the interests of the community for whom nursing and clinical care is provided; and

WHEREAS the ANF acknowledges the impact its members’ actions is having on patient care, however it has not taken action lightly.  It says that its members are angry and frustrated at the lack of an offer from the applicant and disputes that the Caretaker Conventions preclude an offer being made; it cites previous negotiations held in 2001 as an example of the capacity to resolve the matter during the Caretaker period; that it is concerned at the lack of progress in negotiations todate and has genuine concern that there will be no resolution before the expiration of the Agreement; and

WHEREAS having considered the discussions during the conference, that Commission is satisfied that industrial action in the form of “closing beds” is having and will increasingly have an adverse effect upon patients of the Western Australian public health system and, further, that it is necessary that negotiations for a new Agreement proceed expeditiously and that the industrial action cease; and that to prevent the deterioration of industrial relations in respect of the matter in question until the parties are able to have further discussions at a time where the applicant will be able to properly make an offer to the ANF, and taking account of the equity and fairness, and the substantive merits of the case and in particular section 44(6)(ba)(i) and (6)(bb)(i), the Commission has formed the view that orders with respect to this application should issue;

NOW THEREFORE having heard Ms K Worlock and Mr M Warner on behalf of the applicant and Mr M Olsen on behalf of the ANF, the Commission, having regard to the interests of the parties directly involved, the public interest and to prevent the further deterioration of industrial relations, and pursuant to the powers vested in it by the Act, hereby orders:

INTERIM ORDERS

1. THAT the Commission undertake further conferences between the parties, the first to be convened on Thursday, 21 February 2013 at 9.00 am for the purpose of the parties reporting back on a number of issues regarding the negotiation of a new Agreement and the current industrial action, in particular:

1. The ANF is to:

9. respond to the Minister as to the jurisdictions, levels and increments it says are appropriate for salary comparison purposes;

ii. advise the Commission whether the Recommendation in this matter has been accepted and acted on by members;

2. The Minister is to confirm that:

10. Parking at Graylands will remain available until it is no longer required or until agreement is reached with the ANF, which agreement will not be unreasonably withheld;

ii. Workloads (NHPPD) will remain unaltered;

iii. Whether it is able to commit to an operative date for the first pay increase of the new agreement.

2. THAT the parties meet either in conferences convened by the Commission or under the auspices of the Commission not less than twice per week, at which the parties are to be represented by their senior officers, until otherwise decided by the Commission.

3. THAT the Minister be in a position to put to the Economic and Expenditure Review Committee of Cabinet, or its equivalent at its first meeting after the State Election, a proposal for the resolution of the matter including salary increases.

4. THAT there be liberty to apply by both parties in respect of these Orders.

RECOMMENDATION

THAT the ANF by its officers and employees lift all bans currently in place, in particular bed closures, in relation to the negotiation of a new Agreement to replace the ANF Agreement and to take no further industrial action.

Acting Senior Commissioner P E Scott