Healthscope Operations Pty Ltd

[2022] FWCA 3391

[2022] FWCA 3391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Healthscope Operations Pty Ltd

(AG2022/3784)

Allied Health Employees (HSU - Healthscope) Enterprise Agreement 2022-2024

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 30 SEPTEMBER 2022

Application for approval of the Allied Health Employees (HSU – Healthscope) Enterprise Agreement 2022-2024

1. An application has been made for approval of an enterprise agreement known as the Allied Health Employees (HSU – Healthscope) Enterprise Agreement 2022-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Healthscope Operations Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 15 September 2022.

1. On 28 September 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of undertakings.

1. Upon my request, the Applicant provided further information about the number of casual employees who cast votes in respect of the approval of the Agreement. The Applicant was able to inform my Chambers that of the 40 employees who cast a valid vote, 10 were casual employees who did not work during the access period. Whilst this shows that there was up to 10 employees whose votes were counted despite the fact that they were not entitled to vote, given that all of the 40 employees voted in favour of the Agreement being approved, I am satisfied that the inclusion of the 10 employees who were not entitled to vote did not substantially affect the outcome of the vote.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Clause 41.1.2 of the Agreement indicates that an employee may be required to work a public holiday, however, but does not specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable, or the refusal is reasonable, as required by s.114(3) of the Act. 

1. Clause 5.2 of the Agreement acts as an effective NES precedence clause, in that it states that in the event that a provision in the Agreement is less favourable than a provision of the NES, then the NES will apply to the extent that the provision is less favourable. As a result of the NES precedence clause, the clause 41.1.2 will not apply to the extent that it is inconsistent with s.114(3) of the Act.  

1. The Applicant has submitted an undertaking in the required form dated 29 September 2022. The undertaking deals with the following topics:

·   At the time of engagement, the company and any part-time employee will agree in writing on a regular pattern of work, specifying the hours worked each day, which days of the week the employee will work, and the start and finish times for each day. I note that these arrangements will become the employee’s ordinary hours of work unless otherwise agreed in writing.

·   Despite clause 35 of the Agreement, the company will only make deductions if such deductions are allowed for in accordance with s.324 of the Act.

·   The company has undertaken to introduce certain provisions, in addition to those included in the Agreement, for any employee that is made redundant. The introduced provisions can be seen in the undertakings attached to the Agreement.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not object to the undertaking and supported the approval of the Agreement.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. The Health Services’ Union (HSU), 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 this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act 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 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2024.

COMMISSIONER

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