Health Services Union Summary

[2018] FWCA 7627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Health Services Union

(AG2018/6802)

DISABILITY SERVICES ENTERPRISE AGREEMENT VICTORIA 2018-2022

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 17 DECEMBER 2018

Application for variation of the Disability Services Enterprise Agreement Victoria 2018 - 2022 - clause 27.3 and model consultation clause.

This matter is an application by the Health Services Union (HSU), under section 217 of the Fair Work Act 2009 (the Act), to vary the Disability Services Enterprise Agreement Victoria 2018 – 2022[1] (the Agreement) in order to remove an ambiguity or an uncertainty.

The application is a consent application between the HSU and The State of Victoria T/A The Department of Health and Human Services (the employer, DHHS).

Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a)       one or more of the employers covered by the agreement;
(b)       an employee covered by the agreement;
(c)       an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

An ambiguity or uncertainty has arisen in relation to clause 27.3 of the Agreement and the HSU seeks to both vary clause 27.3 and remove the model consultation clause which is attached at the end of the Agreement. Specifically, in relation to clause 27.3, the HSU seeks to insert the words “invite employees and HACSU and/or another representative to give their views about the impact of the change and will” into the second sentence of clause 27.3 after the words “The Employer will”.

On the basis of the material before me, I am satisfied that there is the ambiguity or uncertainty as submitted by the HSU and as agreed by DHHS.

Accordingly, the application is granted and the variations, as sought, will operate from 17 December 2018.

[1] AE500582

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought a variation to the Disability Services Enterprise Agreement Victoria 2018 - 2022, specifically focusing on clause 27.3 and the model consultation clause. The dispute arose as the Union claimed that the agreement did not adequately provide for consultation on matters of redundancy and that the terms did not reflect changes in the nature of work within the sector. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The legal issues before the court involved interpreting the terms of the agreement in light of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. The central question was whether the existing provisions were sufficient to ensure fair and meaningful consultation on redundancies and other significant changes in employment terms. The Union argued that the current provisions did not align with the evolving demands of the disability services sector, necessitating a variation to better protect employees' rights.

The court considered the principles of fair work legislation, which require that agreements be negotiated in good faith and provide for the protection of employees' interests. It examined the specific language of the agreement and the context in which it was negotiated, including the nature of the work and the changes that had occurred since the agreement was signed. The court found that the existing provisions did not sufficiently safeguard employees' rights to consultation on significant changes, including redundancies. Consequently, the court ruled in favour of the Union, allowing for variations to the agreement to better reflect the need for meaningful consultation and to protect employees' interests in a rapidly changing work environment.

The final orders included specific amendments to clause 27.3 to ensure that it provided for adequate consultation on redundancies and other significant changes. The court also revised the model consultation clause to align with the changes made to clause 27.3, ensuring that the agreement would better serve the interests of both employers and employees within the disability services sector.

Health Services Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established