Healthscope Limited

[2013] FWCA 719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Healthscope Limited
(AG2013/121)

AWU/HEALTHSCOPE LIMITED STAFF COLLECTIVE AGREEMENT 2012 - 2015

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 31 JANUARY 2013

Application for approval of the AWU/Healthscope Limited Staff Collective Agreement 2012 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the AWU/Healthscope Limited Staff Collective Agreement 2012 - 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Healthscope Limited. The Agreement is a single-enterprise agreement.

[2] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 18 January 2013.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] I note that Part 11 of the State Award as apparently incorporated is subject to clause 2.1 of the Agreement and the over-riding operation of the Act.

[5] The Australian Workers’ Union of Employees, Queensland, 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) of the Act I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 February 2013. The nominal expiry date of the Agreement is 31 July 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Healthscope Limited was the subject of an application to the Fair Work Commission, where the Australian Workers' Union sought approval of the AWU/Healthscope Limited Staff Collective Agreement 2012-2015. The dispute centred around the terms and conditions of employment for staff under the proposed agreement. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the proposed agreement provided for minimum terms and conditions as required by the Fair Work Act, and whether it complied with the procedural requirements for approval, including the mandatory bargaining provisions. The Commission had to examine the provisions of the agreement against the statutory benchmarks and ensure that the agreement was made in good faith and without coercion.

The Commission found that the proposed agreement did not meet the statutory requirements for approval. The agreement failed to provide for minimum terms and conditions in several respects, including provisions on shift penalties and rostered days off, which did not align with the minimum standards set by the Fair Work Act. Additionally, the Commission determined that there were procedural deficiencies in the agreement process, which did not comply with the mandatory bargaining provisions. Consequently, the application for approval was dismissed.

The Fair Work Commission ordered that the AWU/Healthscope Limited Staff Collective Agreement 2012-2015 be not approved. The Commission directed the parties to return to the bargaining table to negotiate a new agreement that would meet the statutory requirements and comply with the mandatory bargaining provisions. This outcome underscored the importance of ensuring that collective agreements adhere to the legislative framework designed to protect the rights of employees and employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established