Important information for employers – unions’ input not required to make a deal

17 November 2017

The bids of Health Services Union (HSU) and Australian Nursing and Midwifery Federation (ANFM) to stop Dorevitch Pathology (Dorevitch) from asking its employees to agree to a new enterprise agreement was dismissed by the Federal Court last month.

In July and August of this year, HSU engaged in industrial action against Dorevitch, to which the pathology company took employer response action. The industrial action was quickly shut down at the order of Fair Work Commission on September 4, and post-industrial action bargaining quickly ensued.

During the bargaining process, Dorevitch sent their employees a proposed agreement and asked them to vote on it, stating “wage increases and classification changes would not be guaranteed” unless they endorsed the deal.

The unions sought an interlocutory injunction to restrain Dorevitch from continuing with the proposed agreement on the basis that the company had not resolved their dispute and as a result had no right to ask workers to endorse the making of the proposed agreement.

Further, they argued Dorevitch mislead workers by claiming that unless they voted up on the agreement, “wage increases and classification changes would not be guaranteed”.

Justice David O’Callaghan responded with the notions that :

  1. the Fair Work Act does not limit an employer and its employees from making an enterprise agreement at the termination of industrial action; and
  2. the wage increases/classification changes statement was not misleading as they were terms that had not been agreed by the parties, something which is “common ground”.

As a result, Dorevitch Pathology was found to have not misled its workers about its proposed deal and are now free to make a deal without the unions’ input.