Albury Wodonga Health and Ors

[2022] FWC 586

[2022] FWC 586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.248—Single interest employer authorisation

Albury Wodonga Health and Ors

(B2021/1074)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 31 MARCH 2022

Single interest employer authorisation – proposed Mental Health Services (Victorian Public Sector) Single Interest Employers Enterprise Agreement 2020-2024.

1. The following 17 employers have made an application under s 248 of the Fair Work Act 2009 (the Act) for the Commission to make a single interest employer authorisation in relation to a proposed enterprise agreement to be known as the Mental Health Services (Victorian Public Sector) Single Interest Employers Enterprise Agreement 2020-2024 (Agreement):

1.        Albury Wodonga Health

2.        Alfred Health

3.        Austin Health

4.        Ballarat Health Services

5.        Barwon Health

6.        Bendigo Health Care Group

7.        Eastern Health

8.        Goulburn Valley Health

9.        Latrobe Regional Hospital

10.      Melbourne Health

11.      Mercy Hospitals Victoria Limited

12.      Mildura Base Hospital

13.      Monash Health

14.      Peninsula Health

15.      Royal Children’s Hospital

16.      South West Healthcare

17.      St Vincent’s Hospital (Melbourne) Limited.

1. Section 248 of the Act provides as follows:

248     Single interest employer authorisations

(1)Two or more employers may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement.

Note: The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)).

(2)       The application must specify the following:

(a)       the employers that will be covered by the agreement;

(b)        the employees who will be covered by the agreement;

(c)the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.

1. The application was initially made on 8 December 2021 by the Victorian Hospitals’ Industrial Association (VHIA). An amended application was filed on 21 December 2021 specifying the 17 employers listed above as the applicants.

1. The application specifies the 17 applicants as the employers intended to be covered by the Agreement (s 248(2)(a) of the Act). The employers provide public mental health services including nursing and midwifery, health professional, support services and administrative services to Victorians within their respective communities.

1. The application also specifies the group of employees who will be covered by the Agreement (s.248(2)(b)). They are the following employees who are engaged by one of the employers solely or predominantly in the provision of public mental health services (referring to the service, department, unit, or program of the relevant employer rather than the duties of an individual employee):

·   Mental Health Services Officer

·   Facilities Services Officers

·   Registered Nurses

·   Enrolled Nurses

·   Health Professionals

·   Health and Allied Services Employees

·   Managers

·   Administrative Officers.

1. The employers and employees specified are covered by the Victorian Public Mental Health Services Enterprise Agreement 2016-2020 (2016 Agreement) which has a nominal expiry date of 30 June 2020.

1. Each employer has appointed the VHIA as its bargaining representative. The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) are the relevant registered organisations representing the specified employees. On 24 December 2021, my Associate was advised that neither the ANMF nor the HSU object to the application.

1. The effect of the authorisation sought is to allow two or more single interest employers to bargain together in relation to a new enterprise agreement. Section 249 of the Act specifies when the Commission must make a single interest employer authorisation:

249 When the FWC must make a single interest employer authorisation

Single interest employer authorisation

(1)The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:

(a)       an application for the authorisation has been made; and

(b)       the FWC is satisfied that:

(i)the employers that will be covered by the agreement have agreed to bargain together; and

(ii)no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and

(c)the requirements of either subsection (2) (which deals with franchisees) or (3) (which deals with employers that may bargain together for a proposed enterprise agreement) are met.

Franchisees

(2)The requirements of this subsection are met if the FWC is satisfied that the employers carry on similar business activities under the same franchise and are:

(a)       franchisees of the same franchisor; or

(b)       related bodies corporate of the same franchisor; or

(c)       any combination of the above.

Employers that may bargain together for the agreement

(3)The requirements of this subsection are met if the FWC is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.

Operation of authorisation

(4)       The authorisation:

(a)       comes into operation on the day on which it is made; and

(b)       ceases to be in operation at the earlier of the following:

(i)the day on which the enterprise agreement to which the authorisation relates is made;

(ii)12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.”

1. Having considered the material before me, including the matters set out in the statement of Mr Nagle dated 30 March 2022, I am satisfied, pursuant to s 249(1) of the Act, that the employers who will be covered by the proposed Agreement have agreed to bargain together. I am also satisfied that no person has coerced, or threatened to coerce, any of those employers, to bargain in this way.

1. I am satisfied that the employers listed are those specified in the replacement declaration made by the Minister on 22 November 2021 under s 247 of the Act.

1. Therefore, in accordance with s 249(1) of the Act, I must make a single interest employer authorisation in relation to the proposed Agreement.

1. The authorisation will come into operation on the day on which it is made, which is the date of this decision. The authorisation will cease to be in operation on the day on which the proposed Agreement is made or 12 months from the date of the authorisation, subject to any extension pursuant to s 252 of the Act.

1. The authorisation[1] giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

[1] PR739367

Printed by authority of the Commonwealth Government Printer

<PR739366>