Big win for members in hospital scope orders

Posted September 9, 2013 by Together Queensland

Article reprinted with the kind permission of Workplace Express

The Fair Work Commission has rejected a bid by one of Australia's largest not-for-profit private hospital groups to merge three existing Agreements covering its non-health professional employees into a single combined deal.

On 6 August 2013, representatives for ASU (our union in the federal jurisdiction) argued before Commissioner Susan Booth for a separate Agreement to cover clerical and administrative employees of UnitingCare Health under s238 of the Fair Work Act, while the CFMEU and the CEPU sought orders for a separate Agreement to cover all building and engineering maintenance service employees.

Formed in June 2000, the Queensland-based UnitingCare Health employs more than 3,500 people across five hospitals including Wesley, St Andrews and Sunshine Coast, and three other health facilities, treating around 100,000 patients yearly.

UCH, in opposing the application, sought an amalgamation of three agreements: the UnitingCare Health Clerical Enterprise Agreement 2011 (covering 428 clerical employees) which nominally expired on December 31 last year; the UnitingCare Health Support Services Enterprise Agreement 2010 (covering 679 support services employees and nominally expired on December 31 last year); and the UnitingCare Health Engineering/Maintenance Collective Agreement 2008 (covering 18 building/engineering maintenance employees and nominally expired on June 30, 2011).

The AWU and TWU representing support services employees didn't oppose the applications by the other unions, or seek separate scope orders.

UnitingCare Health maintained that the unions hadn't bargained in good faith, arguing that the scope dispute had caused a deadlock. 

It also maintained that the 2010 bargaining representatives for the clerical deal had agreed that the next bargaining round would focus on an amalgamated Agreement, which is why its term was for only 13 months from lodgement.

But the ASU denied it had entered into any future scope commitment. 

On the clerical and administrative Agreement, Commissioner Booth agreed with the ASU that "negotiations on a combined Agreement could override the fair resolution of outstanding classification issues".

"It may well be that classification issues will not be critical in some future bargaining. But at this point in time, as a matter of fairness, the outstanding nature of the classification review favours retention of a separate Agreement for this group of staff," she said.

Finding that scope orders would promote the fair and efficient conduct of bargaining, Commissioner Booth took into account that clerical employees made up only 38% of the combined groups (1,125 total), the uncertainty surrounding a classification review for a combined Agreement, and because the ASU had made a deal with the unions about other issues including classification matters.

Commissioner Booth also found that the clerical employees had been fairly chosen, accepting the ASU's evidence that they had specialised knowledge and skills, including of medical terminology and health insurance.

She described as an "important factor but it is not decisive" the ASU’s claim that its members preferred to remain a distinct group.

She rejected UnitingCare Health's argument that it wasn’t reasonable to make the order because there had been "low engagement" by some union bargaining representatives due to the scope dispute, rather than bargaining claims.

"There is no doubt that issues around scope infected almost every negotiation held to date.

"However, the mere fact that scope issues have been present throughout negotiations cannot on its own mean it is unreasonable to make a scope order: that would be a bizarre outcome, contrary to the Act’s intent. The test is set out in s.238. Whether it is reasonable to make the order is but one of the factors listed," she said.

On the Agreement covering 18 building and engineering maintenance service employees, Commissioner Booth found that the CFMEU and the CEPU had bargained in good faith, the group was fairly chosen and it was reasonable to make the scope order.

Following the full bench in the United Firefighters decision, Commissioner Booth said there was a risk that the smaller building and engineering maintenance service group could be “outvoted in areas where their interests diverged”, and ruled in favour of the scope order to promote fairness and efficiency in bargaining.

In a statement, ASU Assistant Secretary Kevin Place welcomed the decision, saying it underscored the importance of clerical and administrative members having a stand-alone Agreement "to ensure their work conditions are not lessened".

You can view the FWC decision here:


Authorised Alex Scott, Secretary, Together.
© 2018 Together | Privacy