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June
2004
Nursing,
enterprise bargaining and the Workplace Relations Act
Public
sector nurses in most states have embarked on negotiations over
their terms and conditions of employment with their respective
governments. Debbie Richards answers some common questions
on the process.
Most nurses employed in public sector hospitals have experienced
first hand the often confusing and complex process of negotiating
an enterprise agreement under the federal Workplace Relations
Act 1996 (WRA).
Public sector nurses in NSW are the only nurses employed in public
hospitals whose wages and conditions are determined under a state
industrial relations system.
With six of the eight state public sector agreements expiring
during 2004, enterprise bargaining is well underway in most states
and territories.
Members of the ANF Victorian and Tasmanian branch have recently
reached agreement after a successful industrial campaigns.
At the time of writing, ANF branches in South Australia and ACT
are well into their negotiations, while the Western Australian
Branch has recently commenced negotiations for their new agreement.
Since its inception in 1996, the focus of the WRA has been on
the making of agreements. In most cases, ANF members in the public
sector have been covered by at least two sequential agreements,
with each agreement covering a period of up to three years.
The WRA requires that the parties seeking to make an agreement
comply with a number of steps in order to obtain the protections
provided by the Act. The information below addresses some of
the questions often asked by nurses about the enterprise bargaining
process.
What is a bargaining period?
When an agreement is about to expire or a new agreement is to
be negotiated, the WRA provides for the initiation of a bargaining
period by either a union, an employer or an employee. This provides
written notice to the parties and the Australian Industrial Relations
Commission (AIRC) of the intention to commence negotiations.
The bargaining period commences seven days after the notice has
been given.
Why have a bargaining period?
The WRA prohibits industrial action during the term of an agreement.
However during a bargaining period, the parties may engage in
protected industrial action which protects the parties from any
civil prosecution arising from industrial activity.
During this period, the Act prohibits an employer from dismissing,
threatening to dismiss, or taking any action to the detriment
of the employee because the employee is involved in industrial
action.
Similarly, during a bargaining period, the Act provides for an
employer to take protected industrial action. While not commonly
used by employers in the health industry, industrial action by
the employer may include locking employees out of the workplace
and replacing them with alternative labour.
What is the role of the AIRC?
The AIRC may suspend or terminate a bargaining period if it is
satisfied that a party is not genuinely trying to reach an agreement,
or is not complying with any directions given.
The AIRC can also suspend or terminate a bargaining period if
it forms the view that the industrial action is threatening to
endanger the life, safety, health or welfare of the community
or causing significant damage to the Australian economy.
If the bargaining period is terminated, the AIRC may decide to
exercise its conciliation powers under the Act to resolve the
matters in dispute. If this is unsuccessful, the AIRC can refer
the dispute to a Full Bench of the Commission for arbitration.
What steps are required to certify an agreement?
An enterprise bargaining agreement comes into effect when it
is certified by the AIRC. Before the AIRC approves and certifies
the agreement, it must be satisfied that the parties to the agreement
have fulfilled a number of requirements under the Act including
the following:
- That
the employer has taken reasonable steps to notify all persons
who will be covered by the agreement that the agreement is to
take effect;
- That
the employer has explained the terms of the agreement to all
the employees;
- That
the employees have been given at least 14 days to view the proposed
agreement;
- That
a valid majority of the employees to be covered by the agreement
have voted in favour of the agreement.
The
AIRC must also be satisfied that the agreement passes the 'no
disadvantage test'. The 'no disadvantage test' is applied to
ensure that the terms and conditions of employment under the
agreement are no less than those under the relevant award. The
Commission examines the content of the agreement to determine
whether employees will, on the whole, be better or worse off.
Once the agreement is certified it is a legally binding instrument.
Note:
This article provides and overview of the agreement making
process and does not seek to provide legal or industrial advice.
ANJ readers are urged to contact their ANF representative to
obtain advice on such matters.
Debbie
Richards
ANF Federal Industrial Research Officer
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