Healthscope Operations Pty Ltd

[2024] FWCA 3468

[2024] FWCA 3468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Healthscope Operations Pty Ltd

(AG2024/3205)

HEALTHSCOPE – PSYCHOLOGISTS & DIETITIANS AGREEMENT 2023 - 2026

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 17 OCTOBER 2024

Application for approval of the Healthscope – Psychologists & Dietitians Agreement 2023 - 2026

1. Healthscope Operations Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Healthscope – Psychologists & Dietitians Agreement 2023 - 2026 (the Agreement).

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 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023. Given the notification time for the Agreement was 6 April 2023, the transitional arrangements for the Amending Act provide that the genuine agreement requirements in Part 2-4 of the Act as they stood just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 9 August 2024, the better off overall test provisions in Part 2-4 of the Act as amended on 6 June 2023 apply.

1. Clauses 17.3, 34.3, and 34.3.4 of the Agreement contained typographical errors referring to “this Award,” which should have referred to the Agreement. Clause 24.3 also incorrectly referred to clause 17, which should have been a reference to clause 19. The Employer has provided an updated copy of the Agreement which corrected these errors. I am satisfied that each of the above constituted an obvious error, defect, or irregularity, and I will amend the Agreement accordingly pursuant to s.218A of the Act.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Healthscope – Victoria – Psychologists & Dieticians – Enterprise Agreement – 2021 – 2025” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(2) of the Act to disregard this error.

1. Clause 10 of the Agreement, relating to consultation, does not included consultation when change is made to an employee’s regular roster or ordinary hours of work as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Under s.205A(2), the workplace delegates’ rights term in Clause 33A of the Health Professionals and Support Services Award 2020 (the Award) is taken to be a term of the Agreement.

1. The following provisions may be inconsistent with the National Employment Standards (NES):

• Clause 14.3, relating to notice of termination by an employee, may permit the Employer to withhold monies owing to an employee under the NES.

• Clause 29 of the Agreement, relating to personal/carer’s leave, does not apply to casual employees, and is inconsistent with s.102 of the Act;

• Clause 30.1, relating to compassionate leave, does not provide casuals with an entitlement to unpaid compassionate leave, inconsistent with s.106 of the Act;

• Clause 34.3, relating to public holiday substitution, does not allow for a substitution of a public holiday to be made by agreement between the Employer and a single employee, as is allowed under s.115(3) of the Act.

1. However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is silent as to the span of hours. The Employer provided an undertaking that the span of hours will be 8:00AM to 7:00PM, Monday – Sunday, to address this issue.

1. Clause 17.3 of the Agreement, relating to shift penalties for early and late shifts, did not provide a sufficiently high penalty for employees in the Psychologist GR4 YR4 and Dieticians GR4 YR4 classifications, to be better off overall when working early or late shifts. The Employer provided an undertaking to address this issue.

1. A copy of the undertakings is attached in Annexure A. I am 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. The undertakings are taken to be a term of the agreement.

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

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 October 2024. The nominal expiry date of the Agreement is 30 August 2026.

COMMISSIONER

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Annexure A