1
[2013] FWC 511
DECISION
Fair Work Act 2009
s.242 - Application for a low-paid authorisation
Australian Nursing Federation
v
IPN Medical Centres Pty Limited and Others
(B2011/3940)
VICE PRESIDENT WATSON MELBOURNE, 17 JUNE 2013
Application for a low paid authorisation - practice nurses - whether employees are low-paid -
access to collective bargaining or difficulty bargaining at an enterprise level - history of
bargaining in the industry - relative bargaining strength - commonality in enterprises -
whether improvements in productivity - whether authorisation in the public interest - Fair
Work Act 2009 - ss. 171, 241, 242, 243, 284.
Introduction
[1] This decision relates to an application by the Australian Nursing Federation (ANF),
lodged on 11 November 2011, for a low-paid authorisation under s.242 of the Fair Work Act
2009 (the Act). The application is made in relation to nurses employed in general practice
clinics and medical centres performing nursing work described in Schedule B of the Nurses
Award 2010 (the Award).1 I will refer to the nurses covered by the application as ‘practice
nurses’. The ANF seeks an authorisation which, if granted, would permit it to bargain for a
multi-enterprise agreement covering all of the employers named in the revised list of
respondents dated 1 February 2013.2
[2] The consequences of granting a low paid authorisation include the availability of the
assistance of the Fair Work Commission (the Commission) to facilitate bargaining,3 the
availability of bargaining orders in relation to the multi-employer bargaining arising from the
Act’s good faith bargaining requirements,4 and the availability of a low paid workplace
determination by way of arbitration by the Commission,5 These rights are not otherwise
available for a bargaining representative who seeks to bargain on a multi-employer basis.
[3] The matter was initially allocated to Commissioner Cribb and referred to me on 12
June 2012. On 19 June 2012, directions were made for the filing of outlines of submissions,
witness statements and other material by any party opposing the application and by the ANF
and any party supporting the application.
[4] In the week commencing 4 September 2012, I heard evidence from ANF witnesses. In
the week commencing 19 November 2012, I heard evidence from witnesses of the
respondents. The parties subsequently filed written submissions and the matter was listed for
final closing submissions on 24 and 25 January 2013.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 511
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[5] In the proceedings Mr C Dowling, of counsel represented the ANF. Mr M Harmer
appeared for Independent Medical Centres Pty Limited, Allied Medical Group Holdings Pty
Ltd and Lonnex & Millenium Management Holdings Pty Ltd, collectively known as IPN.
These entities operate medical practices which employ practice nurses. Mr T McDonald
appeared for the Australian Medical Association (AMA) Limited, AMA Victoria Limited and
AMA Tasmania Limited. AMA members are doctors who own and operate medical practices.
Mr M Ritchie appeared on behalf of the Victorian Employers’ Chamber of Commerce and
Industry (VECCI), an employer association acting on behalf of 26 individual respondents
named in the application. Mr M Follett, of counsel, appeared for the Primary Health Care Ltd,
which is a group comprised of two separate employing entities; Idameneo (No 123) Pty Ltd
and Sidameneo (No 456) Pty Ltd. Primary Health owns and operates 77 medical centres in
Australia.
[6] Others to make submissions included Healthscope Limited and Health & Life. A
number of other individual employers opposed the application. A large number of general
practices on the list of employer respondents were unrepresented in the proceedings.
The Application
[7] The ANF’s application seeks a low-paid authorisation with respect to nurses employed
under the Award by employers listed in an amended schedule of approximately 682
respondents. The original application states that:
The ANF is an employee organisation entitled to represent the industrial
interests of the employees in relation to work to be performed under a multi
enterprise agreement for the purposes of s.242 of the Act;
The employees that are the subject of the application are low paid, have
either not had access to collective bargaining or face substantial difficulty
bargaining at the enterprise level;
The history of bargaining in the industry and the relative bargaining strength
of the employers and the employees supports the authorisation being made;
The employees’ current terms and conditions are inferior compared to
relevant industry and community standards;
All of the named respondents have substantial commonality in the services
provided, staffing, funding and operations;
It is in the public interest to make the authorisation.
[8] The application included a list of employers to which the authorisation would apply.
The list of employers was subsequently amended and a revised list of employers was provided
on 12 December 2012, with further revisions being provided on 1 February 2013. The revised
list contains approximately 682 employers. The employers represented in the proceedings
strongly oppose the application on both jurisdictional and merit grounds.
[2013] FWC 511
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Statutory Provisions
[9] Section 242, under which the application is made, is in Division 9–Low-paid
Bargaining, of Part 2–4 of the Act. Part 2–4 deals with Enterprise Agreements. The objects of
Part 2–4 are found in s.171. Section 171 refers to the provision of a framework to provide
collective bargaining for agreements that will deliver productivity benefits. It states:
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective
bargaining in good faith, particularly at the enterprise level, for enterprise
agreements that deliver productivity benefits; and
(b) to enable FWA to facilitate good faith bargaining and the making of enterprise
agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request
assistance; and
(iii) ensuring that applications to FWA for approval of enterprise
agreements are dealt with without delay.”
[10] Division 9 contains its own objects in s.241. That section reads:
“241 Objects of this Division
The objects of this Division are:
(a) to assist and encourage low-paid employees and their employers, who have not
historically had the benefits of collective bargaining, to make an enterprise
agreement that meets their needs; and
(b) to assist low-paid employees and their employers to identify improvements to
productivity and service delivery through bargaining for an enterprise
agreement that covers 2 or more employers, while taking into account the
specific needs of individual enterprises; and
(c) to address constraints on the ability of low-paid employees and their employers
to bargain at the enterprise level, including constraints relating to a lack of
skills, resources, bargaining strength or previous bargaining experience; and
(d) to enable FWA to provide assistance to low-paid employees and their
employers to facilitate bargaining for enterprise agreements.
[2013] FWC 511
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Note: A low-paid workplace determination may be made in specified circumstances under
Division 2 of Part 2-5 if the bargaining representatives for a proposed enterprise agreement in
relation to which a low-paid authorisation is in operation are unable to reach agreement.”
[11] As a Full Bench of Fair Work Australia has observed6:
“The terms of s.241 are to be read in the context of the enterprise agreement
provisions in the rest of Part 2–4. When the provisions as a whole are considered, it is
apparent that the legislative policy underlying the low-paid authorisation provisions is
that while bargaining on a single enterprise basis is the preferred approach, multi-
enterprise bargaining is permitted “to assist and encourage low-paid employees ... to
make an enterprise agreement that meets their needs”. The other provisions of
Division 9 set out the means by which these objects are to be carried into effect.”
[12] Section 242(1) of the Act sets out who may apply for a low-paid authorisation. It
states:
“(1) The following persons may apply to the FWC for an authorisation (a low-paid
authorisation ) under section 243 in relation to a proposed multi-enterprise agreement:
(a) a bargaining representative for the agreement;
(b) an employee organisation that is entitled to represent the industrial
interests of an employee in relation to work to be performed under the
agreement.
Note: The effect of a low-paid authorisation is that the employers specified in it are
subject to certain rules in relation to the agreement that would not otherwise apply
(such as in relation to the availability of bargaining orders, see subsection 229(2)). “
[13] Section 243 sets out the matters that the Fair Work Commission is required to take
into account in dealing with an application under s.242. It reads:
“243 When FWC must make a low-paid authorisation
Low-paid authorisation
(1) FWC must make a low-paid authorisation in relation to a proposed
multi-enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) FWC is satisfied that it is in the public interest to make the
authorisation, taking into account the matters specified in
subsections (2) and (3).
FWC must take into account historical and current matters relating to collective
bargaining
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(2) In deciding whether or not to make the authorisation, FWC must take into
account the following:
(a) whether granting the authorisation would assist low-paid employees
who have not had access to collective bargaining or who face
substantial difficulty bargaining at the enterprise level;
(b) the history of bargaining in the industry in which the employees who
will be covered by the agreement work;
(c) the relative bargaining strength of the employers and employees who
will be covered by the agreement;
(d) the current terms and conditions of employment of the employees who
will be covered by the agreement, as compared to relevant industry and
community standards;
(e) the degree of commonality in the nature of the enterprises to which the
agreement relates, and the terms and conditions of employment in those
enterprises.
FWC must take into account matters relating to the likely success of collective
bargaining
(3) In deciding whether or not to make the authorisation, FWC must also take into
account the following:
(a) whether granting the authorisation would assist in identifying
improvements to productivity and service delivery at the enterprises to
which the agreement relates;
(b) the extent to which the likely number of bargaining representatives for
the agreement would be consistent with a manageable collective
bargaining process;
(c) the views of the employers and employees who will be covered by the
agreement;
(d) the extent to which the terms and conditions of employment of the
employees who will be covered by the agreement is controlled, directed
or influenced by a person other than the employer, or employers, that
will be covered by the agreement;
(e) the extent to which the applicant for the authorisation is prepared to
consider and respond reasonably to claims, or responses to claims, that
may be made by a particular employer named in the application, if that
employer later proposes to bargain for an agreement that:
(i) would cover that employer; and
[2013] FWC 511
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(ii) would not cover the other employers specified in the
application.
What authorisation must specify etc.
(4) The authorisation must specify:
(a) the employers that will be covered by the agreement (which may be
some or all of the employers specified in the application); and
(b) the employees who will be covered by the agreement (which may be
some or all of the employees specified in the application); and
(c) any other matter prescribed by the procedural rules.
Operation of authorisation
(5) The authorisation comes into operation on the day on which it is made.”
[14] By virtue of s.243(1), the Commission must make a low-paid authorisation if it is
satisfied that it is in the public interest to do so, taking into account the matters in ss.243(2)
and (3). Other aspects of the legislative scheme are also relevant to the application, including
the provisions of the Act regarding majority support determinations, scope orders and
protected industrial action.
Case Law
[15] In the only other application for a low-paid authorisation (the Aged Care Case) since
these provisions were enacted, a Full Bench of Fair Work Australia said7:
“[14] Some initial observations should be made about the nature of the public interest
test. The controlling criterion is satisfaction in the public interest. That criterion is a
broad one and is confined only by the limits of the scope and purpose of the Act, as the
following passage from the decision of the High Court of Australia in O’Sullivan v
Farrer indicates:
“[T]he expression "in the public interest", when used in a statute, classically
imports a discretionary value judgment to be made by reference to undefined
factual matters, confined only "in so far as the subject matter and the scope and
purpose of the statutory enactments may enable ... given reasons to be
(pronounced) definitely extraneous to any objects the legislature could have
had in view"” (references omitted).
[15] While the tribunal is required to take into account the matters specified in
ss.243(2) and (3) in applying the public interest criterion, we do not think it was
intended that those matters are the only ones capable of being relevant to the public
interest. Other matters potentially affecting the public interest can also be taken into
account. The public interest is distinguishable from the interests of the parties,
although it is clear from the matters specified that there is a substantial overlap where
these provisions are concerned.”
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[16] After reviewing the facts of that matter against the criteria in s.243(2) and (3) the Full
Bench said:
“[36] Leaving out of consideration employers and employees to whom an enterprise
agreement applies, we are satisfied that the employees to whom the authorisation
would apply are low-paid, that they either have not had access to enterprise bargaining
or face substantial difficulty in bargaining at the enterprise level and that making an
authorisation would assist them to bargain. Other matters identified in s.243(2) also
point to an authorisation being in the public interest: the history of bargaining, the
relative bargaining strength of the employers and employees and the high degree of
commonality in the nature of residential aged care enterprises and, leaving aside
employees to whom enterprise agreements apply, the conditions of the employees.”
[17] It will be seen that the task of determining whether to make a low-paid authorisation is
based on a broad discretionary test described as the Commission being satisfied that it is in
the public interest to make the determination. The specific factors required to be taken into
account and the objects and scheme of the legislation are the key considerations in applying
this test.
The Evidence
[18] The application made by the ANF seeks to cover nurses employed to provide health
and community services in what are generally referred to as general practice clinics or
medical centres. General practice clinics and medical centres vary in size but are usually small
facilities at which medical services are provided to the general public. Practices may be
operated by a single doctor, a group of doctors in partnership or by a larger corporate entity
that operates multiple clinics. In recent years there has been an increasing trend for medical
clinics to be operated by a large corporate entity. For example IPN operates 160 medical
centres Australia wide and employs more than 2400 healthcare professionals. Primary
Healthcare operates 77 medical centres.
[19] Doctors are the most important professionals in general practice and medical centres
and are often the owners of the business. Larger practices employ other doctors in the
practice. The clinics employ a range of clerical and administrative staff performing duties
such as reception duties, typing, accounts, bookkeeping, and practice management.
Depending on the skills and experience of the employee and the needs of the practice an
employee may perform a variety of different functions often on a multi-disciplinary basis.
Nurses employed primarily to perform nursing duties are commonly referred to as practice
nurses. The role of a practice nurse varies from clinic to clinic, and can range from providing
general healthcare services such as vaccinations and wound care to a more educational role,
such as diabetes education. Both registered nurses and enrolled nurses work as practice
nurses. In some of the larger medical chains they carry titles such as Treatment Room
Attendants.
[20] Practice nursing is a growing area of employment arising from changed business
practices and various forms of funding assistance for the engagement of practice nurses. The
number of practice nurses in Australian medical clinics has increased substantially over the
last 20 years. Between 1995 and 2009, the number of registered nurses working as practice
[2013] FWC 511
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nurses increased from 5304 to 8889. Over the same period, the number of enrolled nurses
increased from 1442 to 2184.8
[21] The demography of practice nurses varies from that of nurses employed elsewhere.
Compared to nurses employed across the health system, practice nurses tend to be older, are
more likely to work part time and a lower proportion are male. The proportion of practice
nurses who are degree-qualified (registered nurses) is equal to the proportion of degree-
qualified nurses employed in other settings. In a 2011 survey conducted by the Australian
Practice Nurses Association (APNA), 65% of respondents indicated that they held at least one
postgraduate qualification, and 87% of registered nurse respondents reported a postgraduate
qualification.
[22] Practice nurses are mostly employed on a part time or casual basis. Of the respondents
to the 2011 APNA survey, only 23% reported that they are employed on a full time basis.
72% of respondents stated they were part time or casual employees. The responses indicated
that the average hours of work per week were between 27 and 28 hours.
[23] The workplace arrangements governing the terms and conditions of practice nurses are
varied. The APNA survey showed that the largest proportion of respondents (38%) are
covered by individual employment contracts. A further 35% stated that they are covered by
awards, and 6% by a collective agreement. This information needs to be treated with some
caution as strictly speaking all employed nurses would be covered by awards and an
individual contract of employment of one type or another. Approximately 17% of the practice
nurse respondents were unsure or did not state the arrangements which govern their
employment. Practice nurses also tended to be paid on an hourly basis (88%), and to be paid
an all-up hourly rate which included loadings and allowances.
[24] The APNA survey showed that the average hourly rate of pay for enrolled nurses in
2011 was $25.17, and $31.11 for registered nurses.
[25] The employment of practice nurses is also affected by Commonwealth funding
arrangements via Medicare, which provide subsidies to general practices for work done by
doctors and practice nurses. When practice nurses perform work set out on the Medicare
Benefits Schedule (MBS), the medical practice bills Medicare and obtains a rebate for a
portion of the cost of providing the service.
[26] In the 2001/2002 financial year, the Commonwealth Government introduced a 4-year
Nurses In General Practice (NIGP) scheme. This scheme included the payment of a Practice
Incentive Payment (PIP) to eligible practices to encourage them to employ nurses, training
and support to develop the practice nurse role and a scholarship and upskilling scheme for
rural and remote nurse re-entry. The NIGP was extended for a further 4 years in 2005/2006.
[27] In addition to these arrangements, certain items were added to the MBS in 2004
relating to work performed by a practice nurse. Originally, this included immunisations and
wound care. Later, pap smears, chronic disease management and antenatal care were added as
MBS items.
[28] In January 2012, the Commonwealth Government introduced a Practice Nurse
Incentive Program (PNIP) which forms part of the funding system for practice nurses. The
PNIP provides incentive payments to medical practices which employ practice nurses,
[2013] FWC 511
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however it also removes six billable items from the MBS in favour of these broader incentive
payments. The current Medicare funding arrangements are expected to remain in place until
2015. This follows from a historical context of the government seeking to fund nurses in
general practice.
[29] The ANF is a craft union covering the vocation of nursing. It is one of the unions with
coverage of employees in the health sector. In 2004 it sought to engage in formal bargaining
for practice nurses in Victoria by issuing a written notice of its intention to make an
agreement and by serving a formal log of claims on a large number of employers. In 2010 it
held a forum for practice nurse members. In 2011 it served a further log of claims on
employers. No new agreements were reached as a result of the service of this log of claims.
[30] A substantial amount of evidence was led by the parties to the application. In total, 51
witnesses gave evidence during the hearing. A list of witnesses is annexed to this decision.9
Further witness statements were provided by the parties, but were either no longer relied upon
by the parties at the time of the hearing or the witnesses were not required for cross
examination. Despite the extent of this evidence it only represents a small proportion of the
employers and employees covered by the application.
[31] The ANF relied on the evidence of eight practice nurses, four union officials from the
ANF, one union official from the NSW Nurses Association, researcher Dr Larissa Bamberry
and Ms Belinda Caldwell, Chief Executive Officer from the Australian Practice Nurses
Association. The ANF also relied on several collective enterprise agreements, annual reports
from companies operating medical centres and pay slips issued to practice nurses.
[32] Ms Yvonne Chaperon, Assistant Federal Secretary of the ANF stated that the ANF
made the application because of calls by ANF members, but also because of the ANF’s
broader goal of improving employment conditions for nurses. It was also her evidence that it
was her belief that ANF practice nurse members generally supported the application.
[33] She gave evidence of forwarding correspondence to a large number of general
practices and medical centres seeking bargaining for an enterprise agreement and the general
lack of responsiveness of the employers to that request. Mr Chaperon was not, however, able
to give detailed evidence about the views of individual respondents named in the application.
Ms Chaperon’s reason for this was that she is not a member of the Industrial Division which
deals with bargaining. Mr Chaperon’s evidence was that she was more involved in attempts to
bargain during 2004-2005, where in her opinion the employers refused to engage in
bargaining because at that time they did not have a legal obligation to bargain.
[34] Ms Chaperon conceded that many practice nurses might be paid above Award rates of
pay despite the absence of an enterprise agreement made under the provisions of the Act. She
said that enterprise agreements that more commonly apply to nurses in other areas of
employment usually cover a broader range of matters than the terms and conditions provided
by employers to practice nurses on an individual basis, and there are usually additional
benefits to nurses covered by these enterprise agreements.
[35] Ms Chaperon rejected the suggestion that practice nurses might not be paid as highly
as hospital nurses because their work is less demanding. Ms Chaperon said that in her
professional experience, practice nurses often care for a wider range of patient needs than
[2013] FWC 511
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those required to be addressed in hospitals, and that the same level of skill and training is
required for practice nurses and hospital nurses.
[36] Ms Leonie Kelly, industrial officer at the ANF Victorian branch gave evidence
relating to her professional experience as a union official. Ms Kelly’s evidence was that there
were approximately 1,586 practice nurse members of the ANF in Victoria, and an additional
409 ANF members who identify medical practices as their secondary place of work. Ms Kelly
gave evidence that approximately 62% of all practice nurses in Victoria are also ANF
members, and that each of the named respondents to the matter employed at least one practice
nurse who was also an ANF member.
[37] Under cross examination, Ms Kelly stated that after the ANF log of claims had been
served on the respondents, a large portion of them contacted the ANF indicating that they did
not wish to bargain for an enterprise agreement. Ms Kelly’s evidence was that unless ANF
members employed at these clinics contacted the ANF, the ANF did not follow up on the
contact from the employers.
[38] Ms Belinda Caldwell, CEO of the APNA, gave evidence that although the APNA is
not an industrial organisation, she often received contact from practice nurses seeking advice
about their employment conditions. APNA has a membership of approximately 3000 nurses
who are predominately employed in general practices. She said that each year APNA, in
accordance with testing methods created in conjunction Monash University, conducts a
survey of all of its members to gather data about their employment.
[39] Ms Caldwell gave evidence that, in her experience, there are several aspects of the
practice nursing environment which “inhibit negotiation of fair wages and conditions.”10
These factors include:
The isolation of nurses from their colleagues because they often work alternate
part-time hours in smaller clinics making it difficult to form a collective opinion;
The demographics of practice nurses and associated societal and cultural norms
which contribute to practice nurses finding industrial negotiations distressing;
The less-than-optimal human resource arrangements of medical clinics which are
often run by busy general practitioners; and,
External pressure caused by Commonwealth Government funding arrangements
[40] The following practice nurses gave evidence for the ANF:
Ms Lynda Burrell;
Ms Monica Knobloch;
Ms Jane Goldsmith;
Ms Lisa Taliana;
Ms Jennie Carr;
Ms Julianne Badenoch;
Ms Amy Bowler;
Ms Deidre Morgan.
[41] But for Ms Bowler, each of the practice nurses who gave evidence for the ANF is a
registered nurse. Ms Bowler is an enrolled nurse.
[42] Ms Burrell gave evidence that she has been a nurse for over 30 years. Ms Burrell is
employed on a part time basis by IPN at IPN’s Mermaid Beach clinic in Queensland. Ms
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Burrell’s evidence was that she has been paid a base rate of $25 per hour since her
employment commenced in 2008, and that during that time she has had one performance
appraisal. Ms Burrell’s evidence also included her employment at a second medical centre, an
imaging and x-ray business, where her rate of pay is $36.65 per hour. It was Ms Burrell’s
evidence that in her view, both of her roles require a similar level of skill and experience, and
she is not sure why she is paid more for one role than the other.
[43] Ms Knobloch gave evidence that she was employed as a practice nurse at the Exeter
Medical Clinic for a period of 9 months, first as a casual employee and later on a part time
basis. Ms Knobloch resigned from the medical clinic to take up a permanent position at the
Launceston General Hospital. Ms Knobloch’s evidence was that she worked two days per
week at the medical clinic, usually Mondays and Fridays, and that she was employed on a
rotating 24 hour, 7 day per week roster at the hospital. Ms Knobloch stated that she was not
required to work weekends at the clinic because it was not open.
[44] Ms Goldsmith is a registered nurse and midwife employed at the Gisborne Medical
Centre (GMC). Ms Goldsmith gave evidence that she was first employed by GMC as a casual
practice nurse in October 2009 and was paid $26 per hour. In February 2010 she was made a
permanent part time employee, and was paid $23 per hour. In May 2010 Ms Goldsmith was
made team leader and her salary increased to $24 per hour. Since then, her salary has
increased further to $28 per hour. In addition to her work at GMC, Ms Goldsmith gave
evidence that she works 8 hours per week as a midwife at the Mercy Hospital for Women,
earning $32.64 per hour plus allowances under the Nurses (Victorian Public Sector)
Agreement. In addition, Ms Goldsmith gave evidence that she is employed for a further 8
hours per week at the Kilmore and District Memorial hospital, where she works as either an
Associate Nurse Unit Manager or as a Night Supervisor. As Associate Nurse Unit Manager,
Ms Goldsmith earns $35.54 per hour, and as the Night Supervisor $40.43 per hour.
[45] Ms Goldsmith’s evidence was that although the role she has at GMC is more varied
and different from her roles in the hospitals, she does not regard it as being less complex.
Under cross examination, Ms Goldsmith stated that one of the reasons she chose to work as a
practice nurse at GMC was that the hours were more reasonable, and made for a better
balance with her life.
[46] Ms Taliana gave evidence that at the time the application was made, she was
employed as a practice nurse at Gamon Street Medical Centre, which has since closed. She
was paid $28 per hour. At the time of Ms Taliana giving evidence, she was employed at
Watervale Medical Centre and was paid $32 per hour. Ms Taliana also gave evidence of her
experience seeking pay increases, stating that she had requested increases and been refused on
three separate occasions. Ms Taliana rejected the suggestion that nurses working individually
in medical practices had greater bargaining power, stating that approaching a general
practitioner to seek a pay rise was intimidating and disheartening. Ms Taliana also gave
evidence that she was undertaking further postgraduate study in diabetes education in order to
increase her skill level.
[47] Ms Carr gave evidence that she was employed as a practice nurse at Deepdene
Medical Clinic, and had been since July 2009. She gave evidence that she is employed on a
part time basis, and is paid $31.20 per hour. She stated that she was not required to work
nights or weekends, although at one time the clinic had considered employing her on
Saturdays to run a vaccination clinic. In Ms Carr’s view, the clinic decided not to because it
[2013] FWC 511
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meant they would have to pay her more. Ms Carr’s evidence included that she had previously
had the assistance of the ANF in relation to dispute with her employer over an individual
employment contract. Ms Carr gave evidence that it was beneficial to her to have the help of
the ANF.
[48] Ms Bowler gave evidence that at the time of the application she was employed as an
enrolled nurse at the Thompson Road Clinic, and was paid $25 per hour. At the time of the
hearing, Ms Bowler was employed by Peninsula Health, a hospital, and paid $27 per hour. Ms
Bowler stated that she had previously contacted the ANF for assistance in dealing with her
employer over her terms and conditions of employment.
[49] The Australian Medical Association (AMA) relied on the evidence of eight doctors
and eight practices managers, as well as a letter from a current practice nurse and one from a
former practice nurse of medical centres it represents. It also relied upon a report and
evidence provided by Roger Kilham, Director of Kilham Consulting.
[50] The following doctors provided evidence for the AMA:
Dr Mark Kennedy;
Dr Cameron Martin;
Dr Jane Sklovsky;
Dr Elroy Schroeder;
Dr Annette Douglas;
Dr Jack Lipp;
Dr John Menzies;
Dr Christine Longman.
[51] Dr Kennedy gave evidence of negotiations with the nurses he employs at the You
Yangs Medical Clinic. His evidence was that previously, practice nurses had been paid
according to the length of time they had been employed. After the three part time nurses
approached him, it was agreed they would all be paid the same rate of $30 per hour. Dr
Kennedy further gave evidence that the nurses at You Yangs Medical Centre work out their
own roster arrangements.
[52] Dr Kennedy also operates the Corio Medical Clinic. His evidence was that nurses at
the Corio clinic are paid different rates, and work nights, weekends and public holidays. In Dr
Kennedy’s opinion, an agreement of the type proposed by the ANF would be problematic
because it would reduce the flexibility available to nurses and his clinics.
[53] Dr Martin gave evidence that in his opinion, practice nurses are in a position of power
when negotiating with their employers because of a shortage of nurses. He stated that in 2010,
the last time his practice advertised for a practice nurse, they received two applications and
both applicants expected to be paid well above Award rates.
[54] Dr Schroeder gave evidence that at the time of the hearing, the practice nurses
employed by him at the Yarra Valley Clinic were paid $33 per hour, and were entitled to five
weeks’ annual leave per year. He also provided a letter from a nurse at the Yarra Valley
Clinic written in response to the ANF application. The nurse’s letter states that the nurse is
happy with the current terms and conditions of employment offered by the clinic.
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[55] Dr Douglas gave evidence that she owns and runs four practices in Tasmania, and that
she manages a further two. Her evidence was that the minimum rate of pay across the
practices is $30 per hour, but that the roles of the various practice nurses vary significantly.
[56] Dr Lipp gave evidence that he is a general practitioner at the Bridge Street Clinic, and
that the clinic employs five nurses, one on a part time basis. The pay rates of the nurses range
from $23 per hour to $40 per hour. Two of the nurses perform administrative work in addition
to their nursing duties.
[57] Dr Menzies gave evidence that the nurses he employs are all paid according to the
Award. His evidence was that the rates of pay of his three nurses ranged from $30.15 per hour
to $33.07 per hour. In addition, the nurses receive 5% of the income they generate associated
with MBS items.
[58] The evidence of the practice managers largely reflected the evidence of the doctors
who gave evidence for the AMA. The following practice managers gave evidence for the
AMA:
Ms Meryl Jerome;
Ms Elaine Cotter;
Ms Sharon Powell;
Ms Jane Tudor;
Ms Gail Pascoe;
Mr Andrew Wright;
Ms Julie Cartwright;
Ms Jenny Ktenidis
[59] The practice managers identified the standard hours of work for the practice nurses
employed at their clinics and general practices, noting that practice nurses are generally not
required to undertake shift work, and that the general practices were able to accommodate
flexible working hours.
[60] The evidence of the practice managers also indicated a variety of different approaches
to discussions about wage rates. Ms Sharon Powell, practice administrator at LMC Lilydale
said: “we do not negotiate pay, however discussions occur from time to time....Wage reviews
occur annually.”11 Ms Meryl Jerome, practice manager of Benalla Church Street Surgery, said
that the nurses’ “pay rate is usually increased by CPI annually, which is specified in the
contract.”12
[61] The practice managers indicated strong support for conducting workplace relations
within their individual enterprises and strong opposition to conducting bargaining as part of a
larger group of employers.
[62] Mr Kilham has an honours degree in economics and has specialised in health
economics since 1989. He provided a report analysing the wage levels of practice nurses. In
Mr Kilham’s assessment, practice nurses are not low-paid when compared to the Australian
workforce in general.13 Further, he states that practice nurses generally are not low-paid when
compared to nurses working in other sectors, such as aged care.14
[63] As to the market position Mr Kilham also stated:
[2013] FWC 511
14
“GP practices generally have to match or better the wage rates offered by the other
sectors. Practice nurses and would-be practice nurses are well aware of the rates paid
by those sectors, and, given their options for employment in them, are well placed to
ensure that their earnings do not fall behind. They are empowered also because
Australia has a general shortage of nurses.”15
[64] As to bargaining practices, Mr Kilham expressed the view that there is not an
imbalance in the power relationship between practice nurses and their employers and that
practice nurses can access enterprise-level bargaining. He said:
“Practice nurses have been able to bargain effectively with doctors because they have
market power. They are able to deal as a professional with a professional. Since most
medical practices are small enterprises, there is no marked imbalance in power such as
what might be expected, for example, where a multi-national company is operating
residential aged care facilities.”16
[65] Mr Kilham also stated that there is not a great degree of commonality in the nature of
the various general practices and medical clinics named as respondents. He stated that the
practices operate under different structures and provide varied services to their clients. Mr
Kilham also said that there are inherent differences in the work requirements for practice
nurses employed in rural, regional and urban practices.
[66] VECCI relied on evidence from one doctor, three nurses and eight practice managers
of the medical centres it represents. It also relied on evidence from Ms Lisa Burrell, who
manages the services for workplace relations at VECCI and Mr Sean Curtain, General
Manager of Human Resources of UoM Commercial Ltd, a medical centre which provides
medical services to patients as well as learning opportunities for students of the University of
Melbourne.
[67] Dr Peter Roessler gave evidence that he has a positive working relationship with his
employed practice nurses. He stated that he pays above award rates, and that the practice
nurses he employs have flexible working arrangements. Ms Leonie Dyball, a nurse employed
by Dr Roessler also gave evidence for VECCI. She stated that she is currently paid above the
Award, has adequate study leave and receives allowances. She also gave evidence that her
employment is flexible, and that she is happy to negotiate directly with her employer.
[68] The nurses employed by VECCI members all gave evidence that they were satisfied
with their terms and conditions of employment, that they are paid penalties and overtime
where applicable, and that they do not support the ANF’s application. The nurses also gave
evidence that they feel comfortable approaching their employers to discuss their terms and
conditions of employment, and that they do not require the assistance of a third party such as
the ANF to do so.
[69] The practice managers called by VECCI all say that their practices pay their employed
practice nurses above the relevant Award rates. Further, the practice managers all state that
the practice nurses have greater flexibility and work more sociable hours than nurses
employed elsewhere.
[70] Ms Burrell outlined the steps she took to identify respondents named in the initial
application who were either incorrectly named or did not employ a practice nurse. Further, Ms
[2013] FWC 511
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Burrell’s statement includes the results and her analysis of surveys sent to named respondents
in the ANF’s application. It was Ms Burrell’s evidence that she believed many of the
respondents named by the ANF in its application have not been correctly identified, or do not
employ a practice nurse who would be subject to any multi-enterprise agreement arising out
of a low-paid authorisation, were such an authorisation to be made.
[71] Ms Mandy Harrington, acting practice manager at The Elms Family Medical Centre,
gave evidence that the ANF’s correspondence seeking to bargain for an enterprise agreement
incorrectly named the medical centre itself as an employer of practice nurses, where a
different corporate entity employs practice nurses.
[72] Mr Curtain’s evidence was that the nurses employed by UoM Commercial Ltd are
paid over Award rates, above $35 per hour, and that they are not required to work weekends.
The salaries of the nurses are review annually, and it was Mr Curtain’s evidence that interim
pay reviews and increases are possible.
[73] IPN relied on evidence from Nikkie Salagiannis, State Manager of New South Wales
of IPN, Mark Beckett, Chief Financial Officer and Company Secretary of IPN, Scott Beattie,
Chief Business Development Officer of IPN and Claresta Hartley, IPN’s solicitor.
[74] Mr Beattie gave evidence that IPN employs approximately 713 practice nurses who
are covered by the Award.17 Mr Beattie said that should the cost of employing nurses
increase beyond current levels, IPN would not be able to afford to employ as many nurses in
its general practices.18
[75] Mr Beckett’s evidence covered the Award coverage and pay rates for IPN nurses.
Attached to his witness statement were tables detailing the number of nurses employed by
IPN in each state, and their individual rates of pay.19 It was Mr Beckett’s evidence that IPN
employs 136 nurses in Queensland, 18 in Victoria, 56 in Tasmania, 44 in South Australia, 175
in New South Wales and 114 in Western Australia. The data in Mr Beckett’s evidence also
sets out the percentages of nurses paid above Award rates on a state-by-state basis. It shows
that on average, IPN nurses working full time in Victoria earn 14.3% above their relevant
Award rates, where those working in Western Australia earn 28% above their relevant Award
rates.
[76] Mr Beckett gave evidence that no IPN nurses are paid below the Award rate, and that
on average, across Australia IPN nurses are paid 14.6% above the applicable Award rate.20 Mr
Beckett’s evidence also showed that Australia-wide, full time IPN nurses earned on average
18.6% above the Award rate, while part time nurses earned 14.3% above the Award. Nurses
employed on a casual basis earned on average 9.9% above the Award rate.
[77] Ms Salagiannis gave evidence that, in her view, the practice nurses employed by IPN
were employed on more favourable conditions than those who work in other environments,
such as hospitals. Ms Salagiannis cited the flexible hours, lack of shift work and performing
less physically demanding work as being some of the comparative advantages of working as a
practice nurse rather than a hospital nurse.21 Ms Salagiannis further stated that although to her
knowledge IPN had never been involved in collective bargaining, IPN nurses had previously
approached IPN management to discuss improving their terms and conditions of
employment.22
[2013] FWC 511
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[78] Ms Hartley gave evidence of the rates of pay of the practice nurses employed by IPN
who gave evidence for the ANF. The range of salaries in Ms Hartley’s evidence of the ANF
nurses was between $25 and $32 per hour for full time or part time nurses, and between $26
and $32 for casual nurses. She also provided extracts of various reports and statistical
analyses about average Australian salaries and salaries of employees covered by the Award.
[79] Primary Health relied on the evidence of June Wong, head of Human Resources for
the medical centres division of Primary Health. Ms Wong gave evidence that Primary Health
employs approximately 487 practice nurses through two separate entities. Ms Wong stated
that the majority of Primary Health’s nursing staff work in large scale medical centres, where
instead of employing doctors, Primary Health allows doctors to pay a fee for the use of
Primary Health facilities and nursing services. Approximately 60% of the medical centres
employ seven or more nurses. Ms Wong’s evidence was that a majority of the nursing staff
are employed as Treatment Room Attendants (TRAs) with a small number being employed in
supervisory roles. In Ms Wong’s opinion, working as a TRA does not require the same level
of skill, complexity and experience that may be required in a hospital or a small local practice.
[80] Ms Wong also gave evidence of the pay rates of Primary Health nurses. Originally, Ms
Wong stated that Primary Health paid 75% of its nurses above the minimum Award rate of
$18.58. During cross examination, Ms Wong conceded that she did not know if all nursing
staff are paid above the Award rate.
Jurisdiction
[81] IPN submits that the Commission’s power to make a low-paid authorisation is limited
to employees who are ‘low-paid’ and that no practice nurse correctly classified under the
Nurses Award would fall within the range of hourly rates considered by the Commission in
other cases to be low-paid. Reliance is placed on the objects of the relevant provisions and
their apparent purpose. IPN’s submissions are generally supported by other employer
representatives.
[82] The ANF submits that the jurisdictional objection involves a misconstruction of the
statutory provisions. It submits that the task of the Commission is to consider a range of
matters in determining whether it is in the public interest to make the authorisation and that
there is no basis for a separate preliminary determination of whether the employees concerned
fall within the description of low-paid. It submits that in any event practice nurses are low-
paid by reference to nursing industry standards in the public sector.
[83] The meaning of the term ‘low-paid’ is subject to strongly competing submissions in
this case. However s.243 of the Act requires a low-paid authorisation to be made if the
Commission is satisfied that it is in the public interest to do so, having regard to matters
specified in subsequent sub-sections. Only one of the subsections makes any reference to low-
paid employees.
[84] There is no doubt that the extent to which the employees subject to the application can
be described as ‘low-paid’ is an important consideration in determining whether it is in the
public interest to make the authorisation. However, I do not consider that satisfaction as to the
low-paid status of the employees concerned is a jurisdictional hurdle to a consideration of the
statutory test or the making of an order under s.243. In my view, the argument of the
employers that there is no jurisdiction to hear and determine the application is unsound. The
[2013] FWC 511
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Commission has jurisdiction to consider the application and make an authorisation if satisfied
the statutory test has been met.
[85] I turn to consider the discretionary public interest test by reference to the factors
required to be considered by s.243 of the Act.
Assistance to Low-Paid Employees
[86] This consideration is expressed in s.243 as “whether granting the authorisation would
assist low-paid employees who have not had access to collective bargaining or who face
substantial difficulty bargaining at the enterprise level”.
[87] The first aspect of the consideration involves an assessment of whether practice
nurses, or any other employees in general practice medical clinics are ‘low-paid’. The term is
not defined in the Act. However, it is a concept that has been commonly referred to in a
variety of contexts in economic and workplace relations circles, including other provisions of
the Act and in decisions of this Commission and its predecessors.
[88] IPN submits that principles of statutory interpretation support the adoption of a
uniform meaning to terms used in legislation. It refers to the explanatory memorandum
dealing with the mention of ‘low-paid’ in Division 9 of Part 2-4 and sections 134 and 284 of
the Act.
[89] In the Aged Care case the Full Bench said23:
“[17] There were a number of submissions relating to the concept of low-paid
employees. We have no doubt that in the context of the provisions of Division 9 the
phrase is intended to be a reference to employees who are paid at or around the award
rate of pay and who are paid at the lower award classification levels.
...
[19] We do not think it can be disputed that a very significant proportion of the
employees in the aged care sector are low-paid in that they are paid at or around the
award rate of pay and at the lower award classification levels. The applicants also
relied on a report by Dr I Watson which compared levels of pay in the aged care sector
with levels of pay for workers in comparable occupations working in other industries.
Although various employer parties sought to criticise the report and submitted that we
should reject it, we found the report useful. The following extract from the executive
summary of the report indicates that aged care employees are low-paid in a relative
sense:
“3 The Census data showed that the aged-care workforce is considerably over-
represented in the lower bands of the income distribution and under-
represented in the higher bands. Nearly half of the aged-care workforce earns
between $400 and $599 per week. The comparable figure in other industries is
closer to a third.
4 Some 56 per cent of the aged-care workforce could be regarded as minimum
wage workers, compared with just 41 per cent among other industries.
[2013] FWC 511
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Particular occupations stand out. Nearly 80 per cent of cleaners and laundry
workers working in aged care fell into the minimum wage category. The
comparable figure in other industries was less than 60 per cent. Food
preparation assistants were similar: in aged care 73 per cent were in the
minimum wage category; in other industries the comparable figure was 61 per
cent. Among carers and aides–who make up the majority of the aged-care
workforce–the percentage in the minimum wage category was 57 per cent. In
other industries it was 50 per cent.”
[20] We accept that in general terms employees in the aged care sector are low-paid.
On the other hand there are many employers who are included in the schedule of
respondents to whom an enterprise agreement under the Act, or its predecessor,
applies. For that reason it is not possible to conclude that employees of those
employers have not had access to collective bargaining. We consider that the existence
of enterprise agreements is a matter to be taken into account in deciding the scope of
any authorisation we decide to make. (references omitted)
[90] A Full Bench in the 2010 Annual Wage Review considered the term in the context of
s.284 of the Act. It said24:
“[237] There is no consensus among the parties and other commentators with respect to
a definition of the low paid. Because there is a continuous distribution of wages, there
is no wage threshold just below which people are clearly low paid and just above
which people are clearly not low paid. Rather, the lower the wage, the more “low paid”
is the employee. People earning above or near median earnings are clearly not low paid
in an absolute sense. In considering relative living standards and the needs of the low
paid, we have focussed mainly on those receiving less than two-thirds of median adult
ordinary-time earnings (currently about $700 per week) and its equivalent hourly rate
(about $18.50). We have also had regard in particular to those paid at the C10 rate, in
recognition of past practice, on the C14 rate, which is equivalent to the minimum
wage, and on those whose full-time equivalent wages put them in the bottom quintile
of the wage distribution. Employees on award wages that are above these rates can be
considered to be low paid in a different sense. The comparison here is between the
award rate and the bargained rate for similar work.”
[91] This approach has been applied in annual wage reviews since that time. In the June
2013 case the Full bench said25:
“[362] There is a level of support for the proposition that the low paid are those
employees who earn less than two-thirds of median full-time wages. This group was
the focus of many of the submissions. The Panel has addressed this issue previously in
considering the needs of the low paid, and has paid particular regard to those receiving
less than two-thirds of median adult ordinary-time earnings and to those paid at or
below the C10 rate in the Manufacturing Award. Nothing put in these proceedings has
persuaded us to depart from this approach.”
[92] Counsel for IPN submits that the case before me provides an opportunity to provide
clarity on the meaning of the term by aligning the approaches adopted in the Aged Care case
and Annual Wage Review decisions. IPN submits that this would result in considering low-
[2013] FWC 511
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paid employees as those on rates between the C14 and C10 classifications in the
Manufacturing Award.
[93] The ANF submits that the term is one that should be applied in the relevant industry
under consideration, that industry is the vocation of nursing and that as practice nurses are
paid less than public sector hospital nurses, practice nurses are low-paid. It submits in the
alternative that practice nurses are low paid because they are often paid at or around the award
rate of pay.
[94] There are a number of problems with the ANF approach, not least of which is the
comparison made with different industries in the health sector. I consider that the term low-
paid used in the legislation is intended to have a consistent meaning, albeit one that cannot be
defined by reference to a strict cut off point. The Aged Care decision and the approach in
Annual Wage reviews involve a consistent approach. In my view that is the correct approach
to adopt in this case. However the notion that the concept is a matter of degree involves an
element of imprecision which in my view must be borne in mind. I propose to adopt a broad
view to the term in the context of the evidence of pay of the employees concerned.
[95] The relevant reference points in line with this approach are as follows:
Low-paid Reference Points Hourly Rates
$
C14 15.96
Lowest Quintile 16.18
C10 18.58
Two-thirds median AWOTE 19.30
Range 15.96-19.30
[96] The rates of pay in the Nurses Award are as follows:
“14.2 Enrolled nurses
(a) Student enrolled nurse
Per week
$
Less than 21 years of age 612.90
21 years of age and over 644.80
(b) Enrolled nurse
Per week
$
Pay point 1 719.30
Pay point 2 728.80
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Pay point 3 738.40
Pay point 4 749.00
Pay point 5 756.50
14.3 Registered nurses
Minimum entry rate for a:
(a) four year degree is $803.30 per week;
(b) masters degree is $831.00 per week.
Progression from these entry rates will be to level 1—Registered nurse pay point 4 and
5 respectively.
Per week
$
Registered nurse—level
1
Pay point 1 769.30
Pay point 2 785.20
Pay point 3 804.40
Pay point 4 825.70
Pay point 5 851.20
Pay point 6 875.70
Pay point 7 901.20
Pay point 8 and thereafter 924.60
Registered nurse—level
2
Pay point 1 949.00
Pay point 2 964.00
Pay point 3 980.90
Pay point 4 and thereafter 997.00
Registered nurse—level
[2013] FWC 511
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3
Pay point 1 1028.90
Pay point 2 1048.00
Pay point 3 1066.10
Pay point 4 and thereafter 1085.30
Registered nurse—level
4
Grade 1 1174.60
Grade 2 1258.70
Grade 3 1332.10
Registered nurse—level
5
Grade 1 1185.30
Grade 2 1248.10
Grade 3 1332.10
Grade 4 1415.10
Grade 5 1560.90
Grade 6 1707.70
14.4 Nurse practitioner
Per week
$
1st year 1184.20
2nd year 1219.40
14.5 Occupational health nurses
Per week
$
Occupational health nurse—
level 1
Pay point 1 825.70
Pay point 2 851.20
[2013] FWC 511
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Pay point 3 875.70
Pay point 4 901.20
Pay point 5 924.60
Occupational health nurse—
level 2
Pay point 1 949.00
Pay point 2 964.00
Pay point 3 980.90
Pay point 4 997.00
Senior occupational health
clinical nurse
997.00
Occupational health nurse—
level 3
Pay point 1 1028.90
Pay point 2 1048.00
Pay point 3 1066.10
Pay point 4 and thereafter 1085.30
[97] The hourly rates for enrolled nurses derived from these weekly amounts range from
$18.92 to $19.91. For student enrolled nurses, the hourly rates range from $16.13 to $16.97.
The hourly rates for registered nurses range from $20.24 to $44.94.
[98] This comparison shows that only student enrolled nurses and enrolled nurses on the
lower pay points who are paid at the award rates of pay could fall within the description of
low-paid applied in other cases. The evidence indicates however that a very high proportion
of practice nurses are registered nurses, they are classified above the lowest pay point for
registered nurses, and they are commonly paid above award rates of pay. The evidence shows
that enrolled nurses require considerable experience before they can be employed within a
general practice and would therefore be entitled to a rate under the award greater than the
lowest pay points.
[99] IPN submits that the registered nurses employed as practice nurses do not fall within
the description of low paid and the enrolled nurses specified by the ANF also fall outside of
that description.
[100] The ANF submits that even ignoring other terms and conditions, the relevant
employees should be described as employees paid at or around the award rate of pay and at
the lower award classification levels and this is more so if the employees are presently
incorrectly classified.
[2013] FWC 511
23
[101] There was a considerable amount of evidence about the appropriate classification for
certain employees. The evidence on those matters did not enable a finding as to under
classification. However I do not consider that the question whether employees are correctly
classified necessarily determines the question of whether the employees are low-paid.
[102] In my view the evidence reveals that very few of the employees subject to the
application are paid below $19.30. The evidence of the rates of pay paid by witnesses called
by the AMA ranged from $23 per hour to about $45 per hour. Most were paid around the $30
per hour level. A survey conducted by VECCI indicated that the average rate paid to 60
enrolled nurses is $25.91. The average pay rate for 202 Registered nurses in the survey is
$32.05. IPN’s evidence suggests a range of $18.59 - 35.63 for enrolled nurses and $19.67 -
$50.00 for registered nurses. Healthscope’s evidence indicates an average of $23.45 for
enrolled nurses and $29.37 for registered nurses.
[103] On the basis of the evidence led in the proceedings I find that very few of the
employees subject to the application fall within the definition of low-paid applied by the Aged
Care and Annual Wage Review Full Benches.
[104] The second element of this criterion is whether the low paid employees have had
access to collective bargaining or face substantial difficulty bargaining at the enterprise level.
The first point that must be made about this element is that the provisions of the Fair Work
Act regarding enterprise agreements apply to all employees and employers covered by the
national system. The rights and obligations in the Act include appointing a bargaining
representative, rights for default bargaining representatives, the right to take protected
industrial action, and good faith bargaining obligations. Some of these rights are conditional
on an employer agreeing to bargain or a bargaining representative obtaining a Majority
Support Determination or Scope Order from the Commission. While these legal rights show
that the employees have had legal access to bargaining, I am of the view that the criterion is
referable to practical access and practical difficulties. Nevertheless the extent to which the
legal options have sought to be utilised is a relevant consideration.
[105] The evidence led in this matter has been extensive. However given the very large
scope of the application affecting approximately 682 employers and a much larger number of
employees, that evidence can only be a snapshot of the position across the group as a whole. It
is also clear on the evidence that circumstances vary considerably between different medical
practices and the snapshot provided by the evidence does not demonstrate a uniform picture.
The evidence gives an indication of the range of different circumstances but not a reliable
indication of the overall situation or the extent to which the circumstances described in the
evidence are common.
[106] It appears that the approach of the ANF to bargaining has been to seek to negotiate on
a vocational basis by reference to the terms and conditions of nurses in the public hospital
system. Nurses are not the largest group of employees in general practice clinics. Their roles
vary considerably. Their duties often overlap with those performed by doctors, clerical and
administrative staff. There is no evidence of any attempts at bargaining at the enterprise level
across the range of employees employed in the general practice. There is no evidence of any
attempts to access enhanced bargaining rights by way of a majority support determination or
to engage in protected industrial action.
[2013] FWC 511
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[107] There is evidence of many employers of practice nurses refusing to bargain with the
ANF for an enterprise agreement for practice nurses arising from the approaches made by the
ANF over recent years. There is also some evidence of practice nurses facing difficulties in
raising issues with their employers over revised terms and conditions of employment and their
formalisation in an enterprise agreement. There is evidence of a variety of reasons for the
employers’ refusal to bargain. There is also evidence of examples of successful dialogue
between employers and their employees and expressions of satisfaction with the terms and
conditions of employment and the existing arrangements by both employers and employees.
There is some evidence of lack of employee support for the ANF efforts to bargain and any
disturbance of the current situation. The evidence of difficulties in bargaining at the enterprise
level extended to practical difficulties the ANF has encountered in participating in such
processes compared to the convenience of participating in multi-employer bargaining.
[108] In my view the notion of assisting employees must involve an element of speculation
as to the likely scenarios if an authorisation is given. Nevertheless it is important that an
assessment be made of such matters because potential assistance to low paid employees is
integral to this factor. If an authorisation is made and the ANF seeks to initiate multi-
employer bargaining with all of the respondents, it will clearly not be a simple process. The
employers will be drawn to the bargaining table against their will. The process of arranging
participation, even with extensive rationalisation of employer representatives will be
cumbersome.
[109] If the evidence of the positions of parties towards the content of an agreement in the
matter before me is any indication, there will be substantial differences between the parties.
The ANF will generally advance the position that the terms and conditions of practice nurses
should more closely reflect those in the public hospital sector because of the similarities in the
work of the nurses. The concept of terms and conditions that suit the needs and capacities of
the general practices concerned appears to be absent from the ANF’s approach.
[110] The employers will advance the position that the economics of their practices and the
employee preferences for work in practice clinics should be primary considerations - as they
have been to date. In my view these likely positions strongly suggest that the process will be
very difficult and somewhat fractious. I propose to consider this matter further in the context
of broader public interest considerations.
[111] Taking all of these matters into account I am of the view that granting an authorisation
may provide some assistance to some low-paid employees. However it will affect many
others and will not necessarily lead to a simple, amicable bargaining process. The difficulties
with the process may detract from any genuine attention to employees who clearly fall within
the category of low-paid, as they are a minority of those represented in the proposed multi-
employer bargaining. On balance I consider that any assistance will be marginal and this
consideration is not a strong factor in support of a finding that it is in the public interest to
make the authorisation.
History of Bargaining
[112] This consideration is expressed in s.243(2)(b) as “the history of bargaining in the
industry in which the employees who will be covered by the agreement work”
[2013] FWC 511
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[113] A consideration of the history may indicate the desirability of providing an alternative
avenue of multi-employer bargaining compared to the current availability of enterprise
bargaining. I have referred to the history of bargaining above. The ANF has made attempts to
bargain with employers primarily by forwarding correspondence and logs of claims seeking
terms and conditions in line with the public sector hospital sector. Those attempts have not led
to agreements with the respondents. No agreements were reached as a result of the service of
a log of claims in 2011. There have not been any attempts at obtaining majority support
determinations.
[114] Support by employees for bargaining by the ANF is variable. Support by employers
has been minimal.
[115] The common existing practice is one-on-one discussions between the practice nurse
and the owner of the practice. From time to time this leads to changes in terms and
conditions. The employers submit that they have not sought to modify Award obligations
through formalised bargaining under the Act and that existing arrangements are therefore at or
above the award level.
[116] The ANF submits that the history supports the making of the authorisation. The AMA
submits that superimposing a multi-employer enterprise agreement on top of existing above
Award arrangements with terms akin to Victorian public hospital nurses has the potential to
unnecessarily interfere with, or upset, single enterprise bargaining that has occurred.
[117] I will have regard to this history in considering the overall public interest. In my view
it is descriptive of the current situation but given the widely divergent views about the current
arrangements, the history is not a strong factor either in support or against the application.
Relative Bargaining Strength
[118] This consideration is expressed in s.243(2)(c) as “the relative bargaining strength of
the employers and employees who will be covered by the agreement”.
[119] The ANF submits that its members rely on the assistance of the ANF in bargaining,
and this is acknowledged by the AMA, yet the AMA and other employers have refused to
approach the ANF to collectively bargain on behalf of its members.
[120] The AMA and other employer representatives dispute the assertion that practice nurses
have a weak bargaining position. They point to the professional-to-professional discussions
that can be engaged in - with or without assistance. They point to the significant over-Award
arrangements as an indicator of bargaining strength and the availability of mutual benefits that
arise from the current arrangements. The acute shortage of nurses is also raised as a factor that
enhances the bargaining strength of practice nurses.
[121] There is no doubt that a multi employer bargaining process will be more convenient to
the ANF than the current enterprise based bargaining that is available. However this criterion
requires a consideration of the respective bargaining strength of the employers and employees
concerned. I do not consider that convenience to a bargaining representative is the same thing,
although the availability of representation is part of the legislative consideration.
[2013] FWC 511
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[122] The difficulties that have been experienced by the ANF to date are not supported by
the fact that significant overaward payments are made. In my view the approach of the ANF
to terms and conditions of employment is a reason for this discrepancy.
[123] The assertions about relative bargaining strengths are strongly contested. I conclude on
the evidence that the employers are in a slightly better bargaining position, but that the ANF
has not demonstrated that this is a significant factor giving rise to a finding that it is in the
public interest to make an authorisation.
Current terms and conditions
[124] This consideration is expressed in s.243(2)(d) as “the current terms and conditions of
employment of the employees who will be covered by the agreement, as compared to relevant
industry and community standards”.
[125] There is a significant amount of evidence about the terms and conditions of
employment of practice nurses. The ANF submits that general practice nurses are paid at or
around the Nurses Award at the lower classification level. The employers point to the average
pay being well above the award. I do not consider on the evidence that the rates of pay can be
described as at or around the Award level.
[126] The parties are also divided on the identification of the relevant industry and
community standards for general practice medical clinics. The ANF points to public hospital
nurses’ conditions and other areas of nursing. The employers submit that these are not
relevant industry or community standards.
[127] Predecessor legislation to the Act defined the concept of ‘industry’ as either an
industry of an employer or the vocation of employees.26 The current Act does not do so. I am
therefore of the view that a relevant industry or relevant industry standard is one derived from
a comparison of the industry of the employers, not vocations of employees.
[128] The ANF does not contend that the wages and conditions of practice nurses subject to
the application are out of step with practice nurses generally. Rather, it relies significantly on
a comparison with public hospital nursing rates. In my view its approach does not deal with
the type of comparisons intended by the legislation, except in a very marginal way. It is of
course not unusual for employees who perform similar work to be paid different wages and
conditions depending on the industry in which they are employed. That is inherent in the
enterprise bargaining system established by the Act and the different economic conditions of
different industries. The ANF has not established that this factor lends strong support for an
authorisation.
Commonality in Enterprises
[129] This factor is expressed in s.243(2)(e) as “the degree of commonality in the nature of
the enterprises to which the agreement relates, and the terms and conditions of employment in
those enterprises”.
[130] The ANF submits that the evidence establishes that a significant majority of general
practices provide a commonality of service and a commonality in the manner in which they
provide that service.
[2013] FWC 511
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[131] The employers submit that doctors set their own fees and patients are subsidised to
defray the costs of those fees, but it would be wrong to equate general practices with
publically funded industries such as the aged care sector. The employers point to the
differences in practice delivery and capacity arising from the differences in scale, labour
markets and variable amounts of multi-disciplinary responsibilities. The evidence also
establishes the development of new practice models arising from new technology and the
entry of large medical clinics and large corporate providers while more traditional approaches
in many smaller clinics continue to exist. Specialisation in areas such as occupational health
and chronic disease management also give rise to differences.
[132] I am satisfied on the evidence that the various employers covered by the application
are substantially similar and a significant proportion of them do not have relevant differences
between them. I consider therefore that the nature of their operations does not present a
barrier to effective multi employer bargaining.
Identifying Improvements in Productivity
[133] The consideration is defined in s.243(3)(a) of the Act as “whether granting the
authorisation would assist in identifying improvements to productivity and service delivery at
the enterprises to which the agreement relates”. This factor is clearly intended to ensure that
consideration is given to the inherent notion of bargaining that improved terms and conditions
may be available in return for improved business efficiencies.
[134] The ANF submits that the career structure it intends to negotiate for practice nurses
will provide improvements in service delivery. The employers generally dispute the value of
such a claim. They point to the specific local flexibilities relevant to each practice as the
major source of productivity improvement.
[135] In my view the ANF has failed to establish that multi employer bargaining will assist
in identifying improvements in productivity. Indeed, from the positions advanced by the
parties in the proceedings, there is likely to be more disagreement over flexibilities and
efficiencies through large scale multi-employer bargaining than there would be if bargaining
is confined to the individual enterprises. In my view this factor does not support the granting
of an authorisation.
Manageable Collective Bargaining Process
[136] This consideration is expressed in s.243(3)(b) as “the extent to which the likely
number of bargaining representatives for the agreement would be consistent with a
manageable collective bargaining process”.
[137] In the proceedings before the Commission eight employer representatives represented
about 40% of the employer respondents. The other respondents were unrepresented.
Healthscope submits that an authorisation would make the negotiations manageable. The
other employer representatives submit that it cannot be assumed that representation in the
proceedings and in relation to award matters would be the same for bargaining. They submit
that there could be a wide range of representatives who will attempt to represent the diversity
of practices and the individuality of employment arrangements in those practices. The
[2013] FWC 511
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employers also point to the evidence that some nurses have written to the ANF or otherwise
indicated that they do not wish to be represented by the ANF.
[138] On the evidence led in this matter I find that the process of multi-employer bargaining
envisaged by the ANF will be very cumbersome. With a large amount of good-will and effort
by all parties it may be manageable, but from the positions advanced by the parties I doubt
that this will be achieved. I also consider that even if the process were to become manageable,
it is likely to be inefficient. There will be a need to consult with many individual employers
and represent a position on their behalf. Any significant disagreements on either the employer
or employee side will be likely to lead to further dispersion of representation. In my view it
cannot be safely concluded that the multi-employer bargaining process will be manageable.
Views of Employers and Employees
[139] This consideration is expressed in s.243(3)(c) of the Act as “the views of the
employers and employees who will be covered by the agreement”.
[140] The ANF refers to the consultation it has had with its practice nurse members and
submits that its application has the support of its members. There is some direct evidence of
employee support. The employers rely on some evidence that the application was not
authorised by the practice nurses employed by some respondents and led direct evidence that
some practice nurses oppose the application.
[141] The employers represented in the proceedings advanced strong grounds for opposing
the application. I conclude that the overwhelming employer view is against the concept of
multi-employer bargaining.
External Control, Direction or Influence
[142] This consideration is expressed in s.243(3)(d) as “the extent to which the terms and
conditions of employment of the employees who will be covered by the agreement is
controlled, directed or influenced by a person other than the employer, or employers, that will
be covered by the agreement”.
[143] The employers point to the uneven funding arrangements applying to general practices
and specialist practices and the capping of the Practice Nurse Incentive Program. No party
suggests that the terms and conditions are controlled or directed by persons other than the
employers. I do not consider that this consideration has any significance in this case.
ANF’s Preparedness to Consider Claim and Single Enterprise Agreements
[144] This consideration is expressed in s.243(3)(e) as “the extent to which the applicant for
the authorisation is prepared to consider and respond reasonably to claims, or responses to
claims, that may be made by a particular employer named in the application, if that employer
later proposes to bargain for an agreement that (i) would cover that employer and (ii) would
not cover the other employers specified in the application.”
[145] The ANF led direct evidence that it is prepared to consider and respond reasonably to
claims, or responses to claims, that may be made by a particular employer if that employer
chooses to bargain for a single enterprise agreement.
[2013] FWC 511
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[146] The employers submit that there is no reasonable basis to accept that the ANF will
adopt a reasonable approach to such matters given the circumstances of making this
application and the objective of obtaining terms and conditions based on public sector
hospital terms and conditions. The employers submit that the approach of the NSW Nurses
Association to small workplaces was far more reasonable than the approach being advanced
by the ANF in the proceedings.
[147] I acknowledge the bargaining difficulties envisaged by the employers. However I
consider that the direct evidence of the ANF in this matter suggests a preparedness to consider
alternative forms of agreement. To conclude that its bargaining position is unreasonable
involves the adoption of a value judgment that I do consider is appropriate in the
circumstances of this matter.
[148] This consideration appears to encourage the applicant to be flexible in its approach
and not rule out the legislatively preferred approach of enterprise bargaining. I am of the view
that its position adds support to its application.
Other factors
[149] The ANF and the employers have raised other matters relating to the context of
general practices and other circumstances that they submit is relevant to an overall assessment
of the public interest. IPN submits that any concession to the ANF’s objectives will be
contrary to the public interest because of its potential to significantly escalate costs, create
pressure in other sectors and exacerbate nursing shortages in other sectors. It is also critical of
what it terms “me-tooism” inherent in the ANF’s approach. IPN submits that other objectives
of a sector wide classification structure and reclassification of nurses are best pursued through
other avenues rather than by this application.
[150] The most relevant object of the Act is contained in s.3(f) which provides:
“3 The object of this Act is to provide a balanced framework for cooperative and
productive workplace relations that promotes national economic prosperity and social
inclusion for all Australians by:
...
(f) achieving productivity and fairness through an emphasis on enterprise-level
collective bargaining underpinned by simple good faith bargaining obligations
and clear rules governing industrial action;”
Public Interest
[151] The task of the Commission is to determine whether it is in the public interest to make
the low paid authorisation taking into account all of the matters dealt with above. Having
regard to the history of negotiations and the circumstances involved I have concluded that
granting the application may provide some assistance to some low paid employees. However I
have also noted that the authorisation will affect many others who do not fall within
established notions of being ‘low-paid’ and the assistance that may be provided is likely to be
minimal.
[2013] FWC 511
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[152] Clearly the making of formal agreements under the Act is a key object of the Act and
this is a factor that I should take into account. However “emphasis” is given to enterprise level
collective bargaining. This has been described as a legislative preference for enterprise level
collective bargaining.27 It is clear on the evidence in this matter that the ANF has not sought
to utilise other forms of assistance provided in the Act for enterprise level collective
bargaining. Further, its approach has a clear vocational element. It seeks to make an
agreement or agreements relating only to practice nurses, notwithstanding the overlap in
duties with other employees engaged in general practices.
[153] The method the ANF has adopted to try to reach an agreement has been to serve a
uniform log of claims on a large number of employers seeking terms and conditions based on
those applicable to public sector hospital nurses. The ANF’s approach is not consistent with a
willingness to negotiate a package of benefits relating to the particular needs of each
enterprise covering a wide range of award covered employees within the enterprise.
[154] In my view there is limited support for the application arising from a consideration of
the possible assistance to some low paid employees, the objects of the Act, the bargaining
strengths of the parties, the com0monality of the enterprises and the views of some
employees. Factors that detract from the application are the prospect of less attention to
improvements in enterprise service delivery and productivity, the highly adversarial and
cumbersome nature of the process that is likely to be involved and the strong opposition from
employers and some employees. Factors which are essentially neutral are the history of
bargaining, the current terms and conditions, the influence of third parties and the willingness
to consider enterprise agreements.
[155] The consistent employer opposition to the notion of multi-enterprise bargaining
combined with the diverse negotiation positions of the parties does not auger well for a
possible multi-employer bargaining process. Indeed it is inevitable that such a process will
face significant logistical difficulties. In my view there is a greater prospect of agreements
being reached if negotiations are conducted at the enterprise level with appropriate utilisation
of the facilitative provisions of the Act. Further, there is a greater prospect of meaningful
enterprise improvements being negotiated if the negotiations are conducted at the enterprise
level. The factors in support of making a low-paid authorisation are not strong. On balance I
am not satisfied that it is in the public interest to make a low-paid authorisation.
Summary and Conclusion
[156] Practice nurses are a rapidly growing class of employees who expand the capability
and efficiency of medical services provided by general practice medical clinics. It is estimated
that over 11,000 nurses are currently employed as practice nurses. General practices range
from small traditional partnerships to large corporate chains. Most practice nurses are
employed on a part time or casual basis on day work. They are generally paid higher than the
relevant Award rate as a result of individual negotiations between the employer and the
practice nurses and the operation of the labour market.
[157] For several years the ANF has attempted to negotiate an improved package of terms
and conditions based on the benefits provided to nurses in the public hospital sector. Its
attempts have been met with strong opposition by general practice employers.
[2013] FWC 511
31
[158] In these proceedings the ANF seeks a ‘low-paid’ authorisation to bargain with
employers on a multi-employer basis. Such authorisations are intended to assist low paid
employees who may be disadvantaged by enterprise bargaining. The ANF’s revised
application covers 682 employers in Victoria and Tasmania. The effect of an authorisation is
to extend rights under the Act to the multi-employer negotiations in which the ANF now
proposes to engage, in lieu of the preferred mode of bargaining under the Act - enterprise
bargaining.
[159] The Commission must grant a low-paid authorisation if it is satisfied that it is in the
public interest to do so. In applying that test the Commission must have regard to a non-
exhaustive set of considerations specified in the Act.
[160] Approximately 80 witnesses were initially proposed to be called to give evidence in
the proceedings. Ultimately, 51 witnesses gave evidence. I have concluded on the evidence
presented by the parties in this matter that a low-paid authorisation may provide some
assistance to some low paid employees. However most practice nurses do not fall within
established definitions of ‘low-paid’ employees. In my view the assistance to low paid
employees is likely to be marginal. Because of the dispersion of the practice nurses in small
general practices, the ANF has faced difficulty bargaining on behalf of its members. It has not
however accessed all rights available under the Act to advance the interests of its members by
way of enterprise-based negotiations. The ANF has sought to negotiate on behalf of nurses
alone rather than participate in processes covering a wider group of award covered employees
within general practices. Its claims are based on the benefits provided to nurses in the public
hospital sector rather than the needs and capabilities of the relevant employers. The current
terms and conditions provided by the Victorian and Tasmanian respondents are not out of step
with general practices elsewhere. They are probably less than the public hospital sector,
although the different requirements of employees and lifestyle factors would need to be
factored into such an analysis.
[161] Multi-employer bargaining is less likely to identify improvements in productivity and
service delivery than enterprise bargaining. Multi-employer bargaining covering several
hundred general practice employers is likely to be cumbersome. There are considerable
doubts that the process will be manageable, even though there is substantial commonality in
the general practices involved. Multi-employer bargaining is supported by a large proportion
of employees. It is strongly opposed by most employers and some employees.
[162] In all of the circumstances I conclude that the case for the authorisation is not strong
and several important factors indicate that multi-employer bargaining may be undesirable or
less appropriate than genuine enterprise-based bargaining. For the above reasons, which are
explained in more detail in the body of this decision, I am not satisfied that it is in the public
interest to make the authorisation. The application is therefore dismissed.
VICE PRESIDENT WATSON
Appearances:
Mr C Dowling, of counsel, for the Australian Nursing Federation.
COMMISSION AUSTRALIA THE SEAL OF FA
[2013] FWC 511
32
Mr M Follett, of counsel, for Primary Health Care Ltd.
Mr M Harmer for Independent medical Centres Pty Limited, Allied Medical Group Holdings
Pty Ltd and Lonnex & Millenium Management Holdings Pty Ltd.
Mr T McDonald for the Australian Medical Association (AMA) Limited, AMA Victoria
Limited and AMA Tasmania Limited.
Mr M Ritchie for the Victorian Employers’ Chamber of Commerce and Industry
Hearing details:
2012.
Melbourne.
June 1
August 21
September 3, 4, 5, 6, 7
November 19, 20, 21, 22, 23
December 13, 14.
2013.
Melbourne.
January 24, 25.
Printed by authority of the Commonwealth Government Printer
Price code G, PR533420
1[MA000034]
2 Exhibit D70
3 Section 246.
4 Section 230(2)(d)
5 Section 260.
6 [2011] FWAFB 2633 at [11]
7 [2011] FWAFB 2633
8 Bamberry L & Bridgen C, Australian Nursing Federation, Practice Nurses, Salaries, Wages and Conditions
9 Annexure 1
10 Exhibit D12, para 16.
11 Exhibit M7, para 7.
12 Exhibit M8, para 5.
13 Exhibit M3, page 3
14 Exhibit M3
15 Exhibit M3, page 2
16 Exhibit M3, page 4.
17 Exhibit H13
18 Exhibit H13, para 16.
19 Exhibit H12, schedules B1-B7.
20 Exhibit H12, para 23.
[2013] FWC 511
33
21 Exhibit H10, para 19.
22 Exhibit H10, para 44.
23 [2011] FWAFB 2633
24 Annual Wage Review 2009-10 [2010] FWAFB 4000.
25 Annual Wage Review 2012-13 [2013] FWCFB 4000.
26 See, for example Industrial Relations Act 1988 s.4.
27 [2011] FWAFB 2633 at [11]
ANNEXURE 1 - WITNESS LIST
ANF
Yvonne Chaperon
Lynda Burrell
Monica Knobloch
Belinda Caldwell
Jane Goldsmith
Leonie Kelly
Lisa Taliana
Jennie Carr
Julianne Badenoch
Agnes Stanislaus-Large
Patricia O’Hara
Amy Bowler
Larissa Bamberry
Deirdre Morgan
Elizabeth Robinson
Primary Health
June Wong
AMA
Roger Kilham
Mark Kennedy
Cameron Martin
Meryl Jerome
Sharon Powell
Jane Sklovsky
Elroy Schroeder
Jane Tudor
Elaine Cotter
Gail Pascoe
Annette Douglas
Andrew Wright
Jack Lipp
Julie Cartwright
John Menzies
[2013] FWC 511
34
Christine Longman
Jenny Ktenidis
VECCI
Danielle Harrison
Bernadette Szwaja
Mandy Harrington
Kath Streete
Emma Thompson
Christine Ziegler
Lisa Burrell
Peter Roessler
Leonie Dyball
Sean Curtain
Patricia McLeod
Stephen Ross
Jenny Yeo
Sharon Street
IPN
Nikki Saligianis
Mark Beckett
Scott Beattie
Jun Lei Hartley
