News

Fair Work Commission Interim Order Stay Application

The Victorian Ambulance Union Incorporated (VAU) published a bulletin on Friday 3 January  2020 updating members about our good faith bargaining order application and an interim order made by the Fair Work Commission (FWC) against Health Select (Bulletin) on 31 December 2019.

The Bulletin, which is attached here also explained that following Health Select’s dissemination of an email on 2 January 2020 attributing incorrect comments and views to the VAU and its legal representative, the VAU were successful in obtaining another interim order from the FWC, directing Health Select to retract its comments on the basis that they were incorrect and therefore misleading (Retraction Notice). Additionally, Health Select were also required to direct the person collecting bargaining votes to exclude the votes made from the time the email was sent on 2 January 2020 and the issuing of the Retraction Notice (Interim Order).

On 5 January 2020 Health Select made an application to appeal this Interim Order. Health Select also applied for a ‘stay order’ (a formal reprieve from the FWC) permitting them not to comply with the Interim Order until the matter was heard on appeal. We are still waiting for an appeal date. We will advise members once this is received.

Last Thursday the ‘stay order’ application was heard in the FWC. The VAU were represented by barrister Eugene White and our solicitors, Gordon Legal. Following this hearing, the FWC gave Health Select the stay order that they asked for, giving them the right not to comply with part of the order which required them to issue the Retraction Notice until the appeal. However, the FWC stated that Health Select should have complied with the part of the notice requiring them to direct the ballot agent to set aside all votes cast after the email was sent on 2 January 2020. This part of the Interim Order is still required to be complied with by Health Select.

Health Select’s further email correspondence

On Thursday, 9 January 2020 Health Select’s Managing Director Jeannette Cunningham sent another extensive email to all Health Select staff titled ‘Health Select Business Statement Sent Today’. The email included a section titled ‘EBA Update and Workplace Arrangements’.

The VAU is concerned that once again, many of the comments made by Health Select in this section of its email are inflammatory or misleading. We have responded to these comments below.

1.    Ms Cunningham asserts that VAU’s applications to the FWC for “overlapping applications, requests for hearing and legal manoeuvres from the VAU” were “designed…to try and delay your right to have a vote on the new agreement”.

The VAU does NOT pursue court proceedings or applications to the FWC that are baseless or vexatious. Each matter is assessed on its merits and advanced based on the strength of the case and whether it would further the interests of our members.

With that in mind we confirm the following.

It is no secret that the VAU did set out to stop the vote.

Our reasons were simple.

First, we believed and continue to believe that Health Select have breached the good faith bargaining requirements contained in the FW Act by putting a proposed agreement to vote (a) before bargaining had finished and (b) without the VAU or other employee bargaining representatives knowing they were going to do so, or having the time to review or consult with members about the proposed agreement.

Second, all bargaining representatives have obligations to meet the good faith bargaining requirements under the FW Act. Putting a proposed enterprise agreement to employees for a vote after only three bargaining meetings while there were still outstanding actions and matters to discuss and before a draft agreement had been finalised is unusual, and shows that Health Select were not, in our view, engaging in good faith bargaining. Many members have told us that the process was rushed and did not serve anyone’s interests other than Health Select’s.

In terms of how we got here, it’s important to understand the timeline.

The VAU first wrote to Health Select on 13 December 2019 and told them that we were concerned they were in breach of good faith bargaining requirements for the reasons set out above before we lodged an application in the FWC and well before the vote commenced. Health Select’s response to our letter was to simply disagree with our position.

Given this response we lodged an application to exercise and protect our member’s rights under the FW Act as employees of Health Select and in relation to bargaining.

Since lodging our initial application on 23 December 2019, the VAU has been required to pursue one further application for an interim order against Health Select because of further alleged breaches of the good faith requirements, namely, publishing incorrect facts and misleading assertions to its employees by email on 2 January 2020. Like our initial application, this additional application had and continues to have a proper basis.

2.    Ms Cunningham states that “the VAU has recently confirmed to us and our professional advisors they are not registered as an actual “registered organisation” / trade union (we also note they do not appear on this Government website listing all trade unions registered in Australia).” They also state that because the VAU is not a registered organisation and “has recently confirmed” this fact, “the VAU will have significant legal and practical hurdles in seeking to continue prosecuting the various legal actions they have initiated (and further expensive and time consuming legal actions they have threatened)”. 

The VAU is and has always represented itself as being an incorporated association. While the VAU will be taking steps to become a registered trade union, our existing legal status as an incorporated association is widely published on our letterheads and bulletins to members. This is no secret.

The fact that we are currently not a trade union does NOT undermine our ability or capacity to represent your industrial interests as employees working in the non-emergency ambulance patient transport industry, or act as a bargaining representative for our members.

While it is very nice that Health Select are concerned about our ability to run cases on behalf of our members, it is actually not their business what we do/do not do. Any concern that we will face “legal and practical hurdles” is misplaced.

3.    Ms. Cunningham goes on to state the following:

“Despite this advice [regarding the VAU having legal and practical hurdles prosecuting various legal actions], I have made the decision that the cost of fighting these technical legal issues is simply not worth it (and is unrecoverable by our business even if we were successful). On reflection, I would prefer to direct these funds towards the positive development of our business and staff career development.

The time spent on the above corresponded with time our senior leadership team spent in the New Year engaging in some strategic planning for 2020. As part of this, we have been assessing the ‘pros and cons’ of navigating through the complex process of a new agreement versus better utilising the benefits and advantages we have under our existing agreement. During our strategic planning, we have also reflected on:

• ·Is a new enterprise agreement negotiated under the current system the best and most effective use of our time, resources and finances?·

• Is it worth spending the associated money and time on litigation and legal/professional fees instead of devoting this to our learning and development programs and staff (and business) enhancement initiatives (such as the Stryker stretcher program)?

• Can we better utilise the various benefits and advantages in the 2010 agreement?

Consequently, we make the necessary but regrettable decision to withdraw the Draft EBA presented to you for voting on 19th of December. To this end, we have recently

• informed the bargaining representatives of this in writing; and

• instructed our third-party ballot agent, administering the electronic vote on the proposed agreement offer, to close and delete the vote results.

What does this mean for you?

I wish to reassure all staff that:

• our business is strong and your jobs are secure;

• all of you will remain covered by the current agreement and will continue to be paid well above the Award;

• the current Agreement will be supplemented by Company Policies and additional flexibility measures where appropriate; and

• The discretionary 3% wage increase we paid to you in December 2019 will be unaffected, and unrelated to whether a new EBA is negotiated or not.

The constant and repeated legal applications and challenges we have recently encountered by the VAU has forced our organisation to waste time and management resources (and incur significant costs) which would be far better directed to delivering quality patient care and other business improvements. Sadly, in our view, the VAU‘s legal games have jeopardised what would otherwise have been a good Agreement and has been one of the reasons preventing this from being advanced to a positive conclusion. This is disappointing as the feedback we have received leads us to believe the majority of our staff wanted this Agreement.

Despite this, we are really enthusiastic about the benefits of remaining on the existing agreement and supporting this with additional flexibility.” [emphasis added].

In response to the above comments, we respond as follows:

• We believe our members are smart enough to know that holding employers to account by ensuring they follow the law is not a game or legal manoeuvre. The VAU do not play games. Your working life is not a “game” and enforcing your rights are not “manoeuvres”.
• It is because of Health Select’s own inappropriate conduct that our application was lodged.
• Members should be aware of the VAU’s position that the 3% wage increase you received in December 2019 was not discretionary. We consider the suggestion that this was discretionary to be misleading. The wage increase paid by Health Select was paid by them in accordance with their continuing obligations under the existing Health Select Services Pty Ltd Enterprise Agreement 2010, which continues to be a legally binding instrument and obliges Health Select to pass on this wage increase.
• Health Select have agreed to initiate enterprise bargaining and as far the VAU are concerned, they are obliged to continue to meet with and bargain with bargaining representatives in accordance with the good faith bargaining provisions of the FW Act. The VAU want to continue bargaining on behalf of its members and have made this clear to Health Select. It is important that a new agreement is negotiated with improved conditions for members.

Next steps

As bargaining representative, we will continue to ensure that Health Select abide by their legal obligations in relation to bargaining for the proposed agreement.

The main hearing about whether Health Select breached the Good Faith Bargaining requirements has been moved to 23 January 2020. It will be at this hearing where all Health Select’s conduct to date in relation to the proposed enterprise agreement will be assessed to see if they have breached the good faith bargaining requirements.

We will continue to keep members informed as to the latest steps in the process, including arranging a meeting with members shortly.

In Solidarity,