As you may be aware we have a problem with the new Public Sector EBA due to a technical error by the Victorian Hospitals’ Industrial Association, which means our new agreement cannot be approved.
We are absolutely livid and gutted that we have to start again after securing great outcomes in the agreement because of this minor but fatal technical error made by the Victorian Hospitals’ Industrial Association.
It’s particularly gutting since it’s already taken 18 months to get to this point. But there is some good news.
We have secured a guarantee that the terms of settlement will not change and that therefore the draft enterprise agreement that you approved in the recent ballot will be used again without any changes.
And there will be payments made before Christmas!
Through our concerted efforts the Victorian Government has authorised hospitals and health services to pay the wage increases described in the new agreement as if it were approved and in operation, effective immediately. This means that payments will be made before Christmas.
Public hospitals and health services have been advised to pay wage increases, back pay and the lump-sum payment at the earliest date, and prior to the commencement of the Christmas holiday period. This is excellent news, and we expect that employers will be organising payment shortly.
We’re working hard to resolve this problem created by the Victorian Hospitals’ Industrial Association as quickly as possible with no further glitches.
But what is the technical matter holding up our agreement?
The technical error that has caused our enterprise agreement approval by the Fair Work Commission to fail has resulted from firstly, critical mistakes being made by the VHIA (representing health services), and secondly, the Fair Work Act’s provisions being absurdly onerous and punitive. In effect, one employer out of 72, with one employee out of 5,575 employees covered by the agreement can bring the whole agreement down because of a technical administrative oversight.
It is clear that even though the offending employer participated in the vote, even if the one employee had voted, the vote could not have affected the ballot result one way or the other. A YES vote of 98.5% of 2,300 employees who voted could not have been compromised by this one vote.
The Fair Work Act requires that an employer must provide all employees proposed to be covered by an enterprise agreement with a Notice of Employee Representative Rights (NERR). The NERR informs staff that bargaining for a new agreement will commence and that anyone covered by the agreement has the right to be represented. The NERR must be provided at the very beginning of negotiations.
The VHIA advised all employers that were to be covered by our agreement to do this and provided them with a copy of the NERR. Most of you would have received a copy of this form from your employer earlier this year.
The issue is that not all employers distributed this notice as required by the Act. A small number of small country hospitals failed to provide this notice to their employees. It was the responsibility of the VHIA to follow this up and they failed to do so. Of the eight employers in this category, seven would have been compliant for a number of technical reasons. Only one small regional health service got it competently wrong causing the failure.
As a result, the Fair Work Commission cannot approve the application made by the VHIA to approve the agreement and we now need to repeat the formal bargaining steps (NERRs, ballot, etc) Note, that the Union and the VHIA have agreed to not raise new claims, seek to reopen old claims or attempt to vary the draft agreement that you voted on. Further, an agreed schedule of actions and timelines will see ‘bargaining’ completed and a vote for the ‘new’ agreement finalised by 15 December 2016, with an application to the FWC to approve the agreement made the same day.
The situation we are in, although absurdly wrong, is facilitated by a provision of the Fair Work Act that the Federal Parliament is currently looking to change for this reason. However, the law is the law even if it is broken. This is one more reason why we need to Change the Rules, by supporting the Union movement’s campaign to change the Act to make it fair and balanced.
We have asked the Victorian Government to side with Victorian health workers and not hide behind a failed piece of Commonwealth legislation, which we’re pleased they have done.
We’ll keep you informed about what’s happening and when the new vote will be held.
If you have any questions please get in touch with us via email or on (03) 9623 9623.
