Bethesda Hospital Inc T/A Bethesda Hospital

[2024] FWCA 2121

[2024] FWCA 2121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bethesda Hospital Inc T/A Bethesda Hospital

(AG2024/1488)

BETHESDA HEALTH CARE (HSU) ENTERPRISE AGREEMENT 2024

Health care services industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 7 JUNE 2024

Application for approval of the Bethesda Health Care (HSU) Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Bethesda Health Care (HSU) Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bethesda Hospital Inc T/A Bethesda Hospital. The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.

1. I raised concerns that the requirement in s. 186(2)(c) that the Agreement not exclude terms of the National Employment Standards (NES) may not be met. In particular, clause 24.4 relating to notice requirements pertaining to carers leave and clause 25.1 providing for the definition of a household member may be read so as to operate in a manner inconsistent with the NES. Undertakings have been provided in relation to those matters. Consequently, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. In response to a further concern I raised about deductions made to an amount payable to an employee in accordance with clause 11.2.3, the applicant has provided an undertaking that deductions will only be made from the amount payable to an employee in accordance with subsection 323(1) of the Act.

1. Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Here the relevant award is the Health Professionals and Support Services Award 2020. Clarity was sought as to the correct matching of classifications for the positions referred to at clause 1.7 of the Agreement. In its response the applicant explained that no employees are currently employed in accordance with this clause, except for Social Workers, and indicates if any of the positions were filled classification matching will be based on the Social Worker classification. The applicant clarified the appropriate classification for Social Workers and submits that the hourly rates for employees at Award HP Level 1 – pay point 2, Award HP Level 1 – pay point 3 and Award HP Level 1 – pay point 4 are above the Award. The applicant also notes that it has no Health Professional positions that meet the definition of Level 4 in the Award and will not during the term of this Agreement.

1. A further concern was raised in relation to the Agreement appearing to be silent on a number of safeguards for part time employees which are provided for in the Award and whether these deficiencies may result in financial and non-financial detriment. In response the applicant submitted that when read together, clause 18.3 in respect to how excess hours are compensated, clause 18.1 providing for the maximum span of hours worked, clause 19.2.2 relating to the circumstances where an employee is entitled to overtime and clause 14.3 in respect of additional shifts worked by a part-time employee, align closely with the provisions in the Award. I sought clarity as to the minimum engagement for casual employees, as provided for at clause 11.2 of the Award. In response the applicant submitted that clause 18.10 which stipulates that employees will not be rostered for shifts less than 4 hours also encompasses casuals. As a further matter, I sought clarity as to whether the decreased span of hours in respect to shift work may raise a BOOT concern. In response the applicant clarified that it does not schedule staff covered under this Agreement for night shifts and indicated other penalties apply which result in employees being better off overall.

1. Given the explanations provided by the applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met. A copy of the undertakings is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised to the undertakings provided. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.

1. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen. 

1. I raised a concern that the dispute settlement procedure contained at clause 48 does not state that employees are entitled to be represented at the Commission phase. This is inconsistent with s 186(6)(b) of the Act. The applicant provided submissions as to the intended operation of clause 48.1.1 relating to settling disputes and for the avoidance of doubt has provided an undertaking to address this matter.

1. Having regard to the undertakings and the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.

1. The Health Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) I note that the Agreement covers the organisation.

1. The Agreement was approved on 7 June 2024 and, in accordance with s.54, will operate from 14 June 2024. The nominal expiry date of the Agreement at clause 4.2 is 31 December 2026. 

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE524958  PR775811>

ANNEXURE A