Healthe Care Australia Pty Ltd

[2013] FWCA 6816

[2013] FWCA 6816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Healthe Care Australia Pty Ltd
(AG2013/7425)

HEALTHE CARE (VICTORIAN HOSPITALS) HEALTH PROFESSIONALS ENTERPRISE AGREEMENT 2013

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 11 SEPTEMBER 2013

Application for approval of the Healthe Care (Victorian Hospitals) Health Professionals Enterprise Agreement 2013.

[1] On 5 July 2013 an application was made for approval of an enterprise agreement known as the Healthe Care (Victorian Hospitals) Health Professionals Enterprise Agreement 2013 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It was made by Healthe Care Australia Pty Ltd (Applicant). The agreement is a single enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] On 9 July 2013 the Health Services Union Victoria No. 3 Branch (HSU) filed a Form 18 notifying the Commission that it did not support the approval of the Agreement. The HSU submitted that the Agreement incorporated the National Employment Standards (NES) but a copy of the NES was never provided to employees in accordance with s.180 of the Act. The HSU further submitted that the Agreement requires employees apply to the employer for long service leave after 10 years of service, which the employer may reject. The HSU submitted that, in negotiating of the Agreement, the employer told the employees that they had an entitlement to long service leave after 10 years.

[4] The HSU further argued that clauses in the Agreement relating to parental leave and annual leave are contrary to the NES. In the Form 18, the HSU also directed the Commission’s attention to a number of entitlements arising from the Agreement that, it argued, are worse off than under the Health Professionals and Support Services Award 2010 (modern award).

[5] On 1 August 2013 the Applicant’s representative filed a response to the Form 18. The Applicant argued the NES was not incorporated into the Agreement and therefore it was not required to provide copies to the employees. The Applicant submitted that it took all reasonable steps to advise employees of the change in long service leave entitlements in the Agreement.

[6] The Applicant noted that a number of entitlements under the Agreement were less beneficial than under the modern award. The issues in contention were as follows:

● whether the Agreement provides higher or lower shift allowances when compared against the modern award;

● whether clause 25(iv) of the Agreement (part time arrangements) is contrary to s.65 of the Act; and

● whether clause 26(e)(ii), which requires that employees accumulate up to two years of annual leave entitlements before being required to take annual leave, is in accordance with s.93(3) of the Act.

[7] On 6 August 2013 the HSU provided a further response. The HSU submission highlighted its continued concerns namely:

● the failure of the Applicant to provide a copy of the NES or to provide access to the NES to employees in the access period;

● the effect of changes to the wording of the long service leave clause being misrepresented to employees during the access period;

● apparent errors in the F17 which impact on the BOOT assessment;

● the requirement for seven weeks notice prior to return from parental leave and the accrual of annual leave up to two years; and

● the process of appointment of the bargaining representatives listed on the Form 16.

[8] Also on 6 August 2013, an analysis of the better off overall test was completed by the Commission and sent to the parties. The matter was then listed for an attendance hearing on 12 August 2013.

[9] On 9 August 2013 the Applicant’s representative contacted the Commission and indicated their intention to file statutory declarations regarding the selection of employee bargaining representatives. A further telephone call to the Commissioner’s chambers on 12 August 2013 from the Applicant’s representative indicated their intention to withdraw the application and refile the Form F16. This was confirmed in writing later that day, identifying the nomination process for the employee bargaining representative on the original application as the reason for seeking to amend the original application.

[10] On receipt of this correspondence, the listing for 12 August 2013 was cancelled. A Notice of Discontinuance was sent to the Applicant’s representative on 15 August 2013.

[11] On 16 August 2013 the Applicant’s representative advised that their correspondence on 12 August 2013 was not intended to convey that they were discontinuing the application, rather that they were amending the application by replacing it. Following this an amended Form 16, copy of the employee bargaining representative instrument of appointment and a copy of the Agreement with a new employee bargaining representative signature were received by the Commission.

[12] The HSU maintained its objection to the approval of the Agreement.

[13] The matter was then listed for an attendance hearing on 22 August 2013.

[14] On 20 August 2013 correspondence was received from the HSU indicating that Ms Maypiece, an employee of the Applicant and a witness they intend to call at the Hearing, was not available on 22 August 2013. On 21 August 2013 the Applicant’s representative indicated their intention to cross examine Ms Maypiece. The matter was relisted to 29 August 2013, and then relisted for 30 August 2013.

[15] On 20 August 2013 the HSU filed its submissions and a witness statement for Ms Maypiece. In its submissions it confirmed:

● concerns in respect of the issue of the nominated employee bargaining representatives and claiming the Applicant made deliberate misrepresentations;

● its views in relation to the amended Form 16 application filed by the Applicant, namely that that amended application should not be accepted by the Commission;

● its concerns in relation to the long service leave provisions being misrepresented to employees; and

● the incorporation of entitlements under the NES not being made clear to employees.

[16] At the hearing on 30 August 2013, the issue relating to employee bargaining representatives was dealt with. Ms Cook, representative for the Applicant, acknowledged the error made in the application 1 and explained the attempt to remedy the error by filing an amended Form 16.2 In respect of the long service leave issue, Ms Cook advised of the Applicant’s preparedness to provide undertakings to ensure clarity of the intention in respect of the long service leave provision.

[17] Mr Leszczynski, for the HSU, submitted the misrepresentation to staff about the alleged bargaining representatives potentially had an influence on the way staff voted on the Agreement. 3 It was noted that 18 employees voted in favour of the Agreement and 15 employees voted against it. In terms of the long service leave provision, the HSU submitted the effect of the changes to the provision as being misrepresented to staff and questioned whether the Agreement was genuinely agreed to, given the misrepresentation.4

[18] The HSU relied on the witness statement and oral evidence of Ms Karen Maypiece, Clinical Coder at the Valley Private Hospital, which is owned by the Applicant. Ms Maypiece gave evidence in relation to the uncertainty of the effect of changes to the long service leave provisions. 5 She confirmed she was not appointed as an employee bargaining representative6 nor did she participate in discussions for the Agreement.7

[19] At the conclusion of the Hearing, the Commission issued Directions (issued in writing on 2 September) for the Applicant to file and serve the following:

● any final form of all or any undertakings it wished to make in respect of the Agreement; and

● an affidavit from Mr Yeoh, Group Commercial Manager of the Applicant, providing an explanation in respect of the errors concerning the nominated employee bargaining representatives.

[20] On 4 September 2013, an affidavit from Mr Yeoh and undertakings were received by the Commission.

[21] The affidavit of Mr Yeoh set out the circumstances in which the employee bargaining representatives were noted on the application. In essence, Mr Yeoh assumed that other site managers had also received the proper instruments of appointment.

[22] On 5 September 2013 correspondence was received from the HSU confirming the undertakings provided by the Applicant addressed its concerns in respect of the long service leave issue. As a result the HSU withdrew its objection to the approval of the Agreement.

[23] A copy of the undertakings provided by the Applicant is attached in Annexure A. The Commission is satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[24] Subject to the undertakings referred to above, the Commission satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[25] The Health Services Union Victoria No 3 Branch 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) the Commission notes that the Agreement covers the organisation.

[26] The Agreement is approved and, in accordance with s.54, will operate from 18 September 2013. The nominal expiry date of the Agreement is 1 July 2016.

COMMISSIONER

ATTACHMENT A

 1   Transcript of Hearing - PN 41, PN 45

 2   Ibid at PN75

 3   Ibid at PN178

 4   Ibid.

 5   Ibid at PN218 - PN227.

 6   Ibid at PN231

 7   Ibid at PN232-233

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