EBA update 14 – Public sector EBA implementation

21 June 2021

ANMF is pleased to confirm that the Victorian Department of Health has advised of the authorisation of the implementation of all terms of the new Nurses and Midwives (Victorian Public Sector)(Single Interest Employers) Enterprise Agreement 2020-2024 by administrative action.

Members will recall that a number of improvements gained in negotiations for the new enterprise agreement – such as the December 2020 wage increase – have already been implemented in this way. The new authorisation will ensure that all improvements achieved in the new enterprise agreement will flow to members without further delay.

Most terms will be implemented on and from 7 June 2021, or by the express date of application in the new agreement. Some terms which have an earlier application date will by reason of the administrative action by the Department of Health, now be the subject of calculation and back payment processes by your employer. ANMF is currently seeking confirmation of the timeframe in which members will receive any applicable back payment associated with the various enterprise agreement improvements.

Immediate implementation of the following terms will be the urgent focus of employers:

1.	Clause 27 -Superannuation	Provision of superannuation during unpaid parental leave and new formula for superannuation on paid parental leave.
2.	Clause 42.7 – Hours of work	Named employers to implement the 8: 8: 10 arrangements on 1 July 2021
3.	Clause 68.2(d) – Parental leave	Eligibility for parental leave reduced from 12 months to 6 months
4.	Clause 70 – Long service leave	Clause 70.5(b)(iv)(C) – amendment of what counts for service from 1 July 2020 Service rules will apply to long service taken or paid upon termination from 7 June 2021 and any recalculations for the period 1 July 2020 to 7 June 2021 for leave already taken or paid will be made as soon as practicable.
5.	Clause 72B – Special disaster leave	Special disaster leave to be available
6.	Clause 72 – Defence service leave	Defence service leave to be available
7.	Clause 30 – Allowances	Increases to allowances per wage increase of 1 December 2020
8.	Clause 30A – Lead apron allowance	Lead apron allowance payable from 1 July 2020
9.	Clause 31 – Qualification allowance	Qualification allowance improvements payable from 1 January 2021
10.	Clause 36 – Vehicle allowance	Vehicle allowance improvement payable from 1 December 2020
11.	Clause 45.7 – Change of roster allowance	Change of roster allowance payable from 1 July 2020

Fair Work Commission decision

ANMF has now also had notification that Fair Work Commission has handed down its decision in relation to an ongoing dispute with the Health and Community Services Union (HACSU) over who should be covered by the new enterprise agreement.

Members would be aware that, since concluding negotiations for the 2020-2024 Nurses and Midwives Public Sector EBA in late March 2020, and members endorsing the outcome at a state-wide online members meeting in April 2020, we were unable to progress the new EBA to a vote due to this dispute.

ANMF had agreed to amendments to the coverage clause of the 2016-2020 enterprise agreement as underlined below:

“…. but excludes a person employed solely or predominantly in the provision of Public Mental Health Services. In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee. Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole. Public Mental Health Services means mental health services delivered on a service, department, unit or program level operated by an employer covered by the Victorian Public Mental Health Services Enterprise Agreement 2016- 2020 (or its successor).”

ANMF had also sought an amended coverage clause in the 2020-2024 Mental Health EBA to mirror the above by amending the definition of ‘Employee’ under the Mental Health Agreement by adding: “In this Agreement, ‘engaged solely or predominantly in the provision of Mental Health Services, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.”

Both amendments above were opposed by HACSU.

It was agreed between ANMF and HACSU that we would each put our respective cases to the Fair Work Commission, along with the employers through their representative the VHIA, and agree to abide by a decision of a Full Bench of the Commission. That case was concluded in November 2020 and the decision was issued on Friday 18 June 2021.

The Commission was asked to answer the following questions:

Is the proposed definition of coverage of the Replacement Nurses Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?
Is the proposed definition of coverage of the Replacement Mental Health Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

The Commission explored the extensive evidence provided by ANMF, HACSU and the VHIA and concluded both question 1 and question 2 (above) in the affirmative, that is that both the respective enterprise agreements should be amended to reflect the ANMF proposal.

This should now enable the 2020-2024 Nurses and Midwives Public Sector EBA to proceed to a ballot of all employees who will be covered by that enterprise agreement, and if approved by a majority of those that vote in the ballot, an application be made to the Commission to have the enterprise agreement approved – the EBA becomes legally enforceable seven days after that decision.

Mental health enterprise agreement

The scope of the public sector mental health agreement will also need to be clarified to reflect the decision of the Fair Work Commission. The next meeting to progress the mental health enterprise agreement is scheduled for 23 June.