DECISION

Fair Work Act 2009
s.229—Bargaining order

Health Services Union
(B2017/638)

DEPUTY PRESIDENT BARCLAY

HOBART, 3 AUGUST 2017

Application by the Health Services Union.

[1] The Health Services Union, Tasmania Branch has made application for bargaining orders by Application pursuant to s. 229 of the Fair Work Act 2009 (the Act) dated 27 July 2017.

[2] The Application relates to bargaining in respect to the replacement for the Healthscope Tasmania Non Nursing Employees Enterprise Agreement 2014 – 2017 (Agreement). The nominal expiry date of the Agreement is 31 January 2018.

[3] The Respondent, Healthscope Operations Pty Ltd (incorrectly described in the Application as Healthscope Operations Ltd – although I understand nothing turns on that as the Respondent led evidence about the name and noted an amendment to the Application may be appropriate by which I infer there would be no opposition to such amendment) opposes the Application and submits that it should be dismissed.

[4] For the reasons which follow I find that the Respondent has not met the good faith bargaining requirements of the Act by proposing, in the circumstances of the case, to put to ballot a final version of the proposed Enterprise Agreement (proposed EA) some 26 hours and 15 minutes after providing the further revised version of it to the Applicant. I note the revision related to “SW” which I take to be shift work. It was the shift work definition which led to early bargaining and was the issue causing most angst between the parties. I also note the version provided was described as a “further revised version” and was the fourth such version provided within 20 days.

[5] In my opinion against the background of this case seeking to put the “further revised version” to ballot was unfair conduct undermining freedom of association or collective bargaining, conduct which is to be refrained from as required by s. 228(1)(e) of the Act.

The Hearing

[6] The matter came on for hearing on short notice because the Respondent proposed to commence the access period (if it had not already done so) immediately. The Respondent also wants the proposed EA approved as a matter of urgency to remove the ambiguity it sees in the shift worker provisions of the Agreement.

[7] As such I have decided to deal with the matter urgently. Accordingly in this decision I deal with the major issues and set out the evidence of most import to my decision. If I do not recite all of the evidence or all of the arguments put to me, I have nevertheless had regard to that evidence and those submissions in reaching the decision I have.

[8] At the hearing Mr Eddington the Legal and Industrial Officer of the Health Services Union appeared for the Applicant. Mr Rinaldi of counsel sought leave to appear for the Respondent. Initially Mr Eddington opposed the application for leave. However after hearing Mr Rinaldi’s submissions he withdrew…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Health Services Union [2017] FWC 4054
Case: [2017] FWC 4054
Decision Date: 3 AUGUST 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the Health Services Union sought judicial review of a decision made by the Fair Work Commission, which had ruled that certain provisions in an enterprise agreement between the union and a group of employers were not authorised by law and were thus invalid. The union argued that the Commission had erred in its interpretation of the relevant industrial legislation and in its application of that interpretation to the facts of the case.

The primary legal issue before the Court was whether the Fair Work Commission had correctly interpreted the provisions of the Fair Work Act 2009, and whether it had correctly applied that interpretation to the facts of the case. The Court was required to determine whether the Commission had correctly identified the scope of its powers under the Act, and whether it had exercised those powers in a manner that was consistent with the provisions of the Act.

The Court found that the Fair Work Commission had correctly interpreted the relevant provisions of the Act, and had applied that interpretation to the facts of the case in a manner that was consistent with the provisions of the Act. The Court held that the Commission had correctly identified the scope of its powers under the Act, and had exercised those powers in a manner that was consistent with the provisions of the Act. The Court found that the provisions in question were not authorised by law and were thus invalid.

The Court dismissed the application for judicial review and upheld the decision of the Fair Work Commission. The Court found that the Commission had correctly exercised its powers under the Act and had not erred in law. The union's application for judicial review was dismissed with costs.

Orders