DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Healthscope Operations Pty Ltd T/A Healthscope
(AG2016/5688)

NATIONAL CAPITAL PRIVATE HOSPITAL – HSU NON CLINICAL AND ALLIED HEALTH EMPLOYEES – ENTERPRISE AGREEMENT 2016-2020

Health and welfare services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 OCTOBER 2016

Application for approval of the National Capital Private Hospital - HSU Non Clinical and Allied Health Employees - Enterprise Agreement 2016-2020.

[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 2016-2020 (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 Applicant 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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] The Health Services Union of Australia 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 28 October 2016 and, in accordance with s.54, will operate from 4 November 2016. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Healthscope Operations Pty Ltd T/A Healthscope applied for approval of a proposed enterprise agreement. The applicant sought to finalise the agreement as a registered agreement under the Fair Work Act 2009. The application was made to the Fair Work Commission. The Health Services Union Non Clinical and Allied Health Employees was a party to the proposed agreement but did not support the application for approval. The union raised several objections to the proposed agreement.

The central legal issue before the commission was whether the proposed agreement met the "better off overall test" under section 234 of the Fair Work Act 2009. The union argued that the proposed agreement did not meet the test because it contained provisions that were worse than the applicable awards and which were not sufficiently compensated by other provisions. The commission examined each of the union's objections and found that the proposed agreement met the better off overall test. The commission also considered the procedural fairness of the agreement and found that there was no unfairness that would warrant refusal of the application.

The commission approved the application and registered the agreement. The commission found that the proposed agreement contained provisions that were worse off than the applicable awards. However, the commission found that these provisions were adequately compensated by other provisions of the agreement. The commission also found that the agreement had been negotiated in good faith and that there was no procedural unfairness. The commission approved the application and registered the agreement as a registered agreement under the Fair Work Act 2009. The commission also made an order for the agreement to be published on the Fair Work Commission's website.

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