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Fair Work Australia

Mr Fletcher asked the Minister for Employment and Workplace Relations, in writing, on 26 November 2012:

In respect of the decision of Fair Work Australia (C2012/1050, C2012/1051, C2012/1052) which set aside agreements purportedly entered into between Macquarie Health and the Australia Nursing Foundation on the grounds that the employer's purported 'bargaining representative' had not been validly appointed under the Act, (a) what are the wider ramifications of Fair Work Australia's decision, (b) how will this affect the operation of 'Individual Flexibility Agreements', (c) what measures will be put in place to ensure that all bargaining representatives are properly appointed under the Act, and (d) what measures will be implemented to ensure that both employers and employees are given the tools to enable them to verify whether bargaining representatives have been properly appointed under the Act.

Mr Shorten: The answer to the honourable member's question is as follows:

(a) It is not apparent that the Full Bench of FWA decision in Kaizen Hospitals (Essendon) Pty Ltd; Kaizen Hospitals (Malvern) Pty Ltd; Kaizen Hospitals (Mount District) Pty Ltd v Australian Nursing Federation [2012] FWAFB 8866; and the recent decision of Hamilton DP in Australian Nursing Federation [2012] FWA 9905 on 20 December 2012 have any wider ramifications. These cases were decided on the basis of their highly unusual facts and are consistent with the policy that a bargaining representative for an enterprise agreement must be validly appointed.

(b) It is not possible to answer this question without knowing the details of any arrangements that may have been made and considering how those arrangements may interact with any applicable industrial instrument.

However, in general terms, individual flexibility arrangements (IFAs) made under an enterprise agreement operate as a term of the relevant enterprise agreement. Terms of an enterprise agreement only have effect whilst the instrument is in operation.

(c) & d)

The Fair Work Act 2009 (the Act) and the Fair Work Australia Rules 2010 (the Rules) include a number of safeguards concerning the appointment of bargaining representatives and the agreement of the parties, including that:

an employer must appoint its bargaining representative in writing (s 176(1) (d) of the Act);

an employer must provide an employee bargaining representative with a copy of the instrument of appointment of its bargaining representative if the employee bargaining representative requests it (s 178(2) (b) of the Act);

the Rules require employers and employee bargaining representatives to file statutory declarations in support of the applications for enterprise agreement approvals, in which they must attest that all statements in the declaration are true in every particular; and

if one party considers that the other is not acting in good faith, they can apply to the Fair Work Commission for a good faith bargaining order under s 229 of the Act.

The Government is committed to strengthening protections for employees during the bargaining process. For instance, the Fair Work Amendment Act 2012 inserted new subsections 174(1A) and 174(1B) into the FW Act to provide that a notice of employee representational rights can only contain the content prescribed by the Fair Work Regulations 2009 (the Regulations), must not contain any other content and must be in the form prescribed by the Regulations.

As noted by the Full Bench, the circumstances in this case were very unusual and the Government does not consider that the circumstances warrant legislative reform.