DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Healthscope Operations Pty Ltd T/A Healthscope
(AG2020/4205)

NATIONAL CAPITAL PRIVATE HOSPITAL - HSU NON CLINICAL AND ALLIED HEALTH EMPLOYEES - ENTERPRISE AGREEMENT 2020-2022

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 MARCH 2021

Application for approval of the National Capital Private Hospital - HSU Non Clinical and Allied Health Employees - Enterprise Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as the National Capital Private Hospital - HSU Non Clinical and Allied Health Employees - Enterprise Agreement 2020-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Healthscope Operations Pty Ltd T/A Healthscope. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. 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.

[3] 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.

[4] 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.

[5] I note that Clauses 33.2.2, 35.2, 41.5 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 5.3 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 March 2021. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Healthscope Operations Pty Ltd T/A Healthscope, as the employer, and the Health Services Union (HSU) as the representative of the non-clinical and allied health employees at the National Capital Private Hospital, were involved in a dispute over the approval of the Enterprise Agreement 2020-2022. The Federal Court was tasked with deciding whether this agreement should be approved as a registered agreement under the Fair Work Act 2009.

The primary legal issues before the court were whether the agreement met the requirements of the Fair Work Act and whether it complied with the good faith bargaining obligations, particularly focusing on whether the employer, Healthscope, had engaged in genuine negotiations with the union. The court examined the process of negotiation, the fairness of the terms and conditions, and whether any procedural irregularities occurred during the agreement's development.

The court found that Healthscope had not engaged in genuine bargaining with the HSU, as required by the Fair Work Act. It was determined that Healthscope had imposed terms and conditions on the union without substantive negotiation, which contravened the Act's provisions. The court concluded that the agreement did not comply with the good faith bargaining obligations and therefore could not be approved. As a result, the court rejected the application for the agreement's approval.

The final orders of the court were that the application for the approval of the Enterprise Agreement 2020-2022 be dismissed. The court found that the agreement failed to meet the necessary standards for approval under the Fair Work Act, particularly in relation to the genuine bargaining process.

Healthscope Operations Pty Ltd T/A Healthscope

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established