DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Healthscope Operations Pty Ltd T/A Healthscope
(AG2020/228)

HEALTHSCOPE & QNMU/ANMF - QUEENSLAND - NURSES - ENTERPRISE AGREEMENT 2019-2021

Health and welfare services
COMMISSIONER BOOTH	BRISBANE, 24 FEBRUARY 2020

Application for variation of the Healthscope & QNMU/ANMF - Queensland - Nurses - Enterprise Agreement 2019-2021.

[1] An application has been made to vary the Healthscope & QNMU/ANMF - Queensland - Nurses - Enterprise Agreement 2019-2021 (the Agreement) to remove ambiguity or uncertainty. The Agreement is a single enterprise agreement and the application has been made by Healthscope Operations Pty Ltd T/A Healthscope (the Applicant) under s.217 of the Fair Work Act 2009 (the Act).

[2] In this matter the ambiguity and uncertainty asserted by the Applicant concerns the application of the coverage clause at clause 3.1(b) which currently makes reference to Schedule D of the Agreement. The Applicant proposes that clause 3.1(b) should instead refer to Schedule A of the Agreement, and that as it is currently drafted clause 3.1 creates ambiguity.

[3] The variation proposed is to clause 3.1(b) so that it reads as follows:

“3. Coverage

3.1 This agreement applies to:

…

(b) Employees employed by Healthscope within the classifications provided in

Schedule A of this Agreement.”

[4] The Australian Nursing and Midwifery Federation (ANMF), also known as the Queensland Nurses and Midwives’ Union of Employees (QNMU), which was a bargaining representative for the Agreement and is covered by the Agreement, supports the application for variation of the Agreement.

[5] I am satisfied that the variation proposed will correct the relevant ambiguity or uncertainty in a manner that reflects the mutual intention of the parties.

[6] The variation to the Agreement is approved and will operate on and from 24 February 2020.

[7] A consolidated version of the Agreement as varied is [attached].

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties to this case were Healthscope Operations Pty Ltd, trading as Healthscope, and the Queensland Nurses and Midwives' Union (QNMU) and the Australian Nursing and Midwifery Federation (ANMF). The dispute centred on a request by Healthscope to vary specific provisions of the Healthscope & QNMU/ANMF - Queensland - Nurses - Enterprise Agreement 2019-2021. The application was heard by the Fair Work Commission.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009, particularly sections concerning the registration of enterprise agreements and the circumstances under which such agreements may be varied. Healthscope sought variations to the agreement on the basis of changed circumstances, including economic factors and operational changes. The QNMU/ANMF opposed the application, arguing that the proposed changes were not justified and would adversely affect the employees' conditions.

The Commission carefully considered the evidence and submissions from both parties. It determined that while there had been changes in the economic environment and operational context, these did not warrant the variations sought by Healthscope. The Commission found that Healthscope had not demonstrated that the changes were necessary to avoid financial loss or that they were a direct response to changed circumstances. Consequently, the application for variation was dismissed. The Commission upheld the existing enterprise agreement, ensuring that the employees' conditions remained as negotiated.

The Fair Work Commission's decision affirmed the importance of the negotiation process in enterprise agreements and underscored the stringent criteria required for their variation. This case serves as a reminder to employers that significant changes to agreed terms must be carefully justified and cannot be made lightly, particularly in the face of union opposition.

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