Employment, IR & Workplace Safety News Alert: FWC confirms health service employer cannot avoid enterprise agreement disciplinary procedures
The Fair Work Commission recently handed down an appeal decision in Australian Nursing and Midwifery Federation v Alfred Health  FWCFB 3045. This case brings into question whether an employer can seek to unilaterally change the working arrangements of an employee in the course of a disciplinary process, and the scope of enterprise agreements in this context.
Ms Guy, a nurse, was alleged to have “spoken over and continued to whisper” during a handover presentation being conducted by a student nurse, and pushed past her without apology in a communal kitchen area. Ms Guy was notified of the allegations in writing, and notified of the outcome of the investigation several weeks later. The consequences for Ms Guy included a “First and Final Warning”, a temporary transfer to a different ward, and development of a “performance plan”.
The focus of the appeal was whether the decision to transfer Ms Guy to a different ward (from her role as a Nurse Clinician) was a matter arising under the relevant Enterprise Agreement – the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (Agreement), and if so, whether the hospital could make the transfer as a part of the disciplinary process under the Agreement.
The disputed clauses within the Agreement were those setting out when the “Dispute Settling Procedures” contained in the Agreement would apply, and a clause which listed “Possible outcomes” (clauses 11.1(a) and 11.11(f) respectively). The employer argued the transfer was “management action” arising from the employment contract, over which the initial decision-maker had no jurisdiction.
Upholding the appeal, the Commission found that the matter was a dispute arising under the Agreement. In so finding, the Commission noted that:
“…where similar agreements may be in place, there is nothing to prevent employers from supervising employees, setting performance targets or monitoring performance pursuant to an employment contract. However, in circumstances where there is a finding of misconduct and there is a comprehensive clause in an enterprise agreement in relation to disciplinary outcomes for employee misconduct, the employer may only select from those disciplinary measures to address the misconduct.”
Australian Nursing and Midwifery Federation v Alfred Health  FWCFB 3045.
Why is this important for your organisation?
Taking disciplinary action without careful review of applicable legal obligations (whether under an enterprise agreement, Award or employment contract) may place your organisation at risk of a dispute over terms of the relevant instrument.
Where employees covered by an enterprise agreement are subject to disciplinary action (in relation to misconduct, performance or otherwise), employers should:
- ensure any specific disciplinary processes or investigative procedures provided for in the agreement, Award or contract are closely followed;
- seek professional advice where the application of any such disciplinary processes is unclear; and
- seek professional advice as to how to manage disciplinary action under the processes of your enterprise agreement, contract or other instrument.
The Employment, IR & Workplace Safety team at TressCox Lawyers can assist you with questions about managing disciplinary investigations and procedures, enterprise agreements and employment contracts. Should you require advice on any of these matters, please contact Peta Tumpey on (02) 9228 9363.
Peta Tumpey, Partner