DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Healthscope Operations Pty Ltd T/A Healthscope
(AG2016/3575)

HEALTHSCOPE NURSES AND MIDWIVES AGREEMENT 2012-2016

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 22 JUNE 2016

Application for termination of the Healthscope Nurses and Midwives Agreement 2012-2016.

[1] Healthscope Operations Pty Ltd t/as Healthscope (Healthscope, the Applicant), has made an application, under section 222 of the Fair Work Act 2009 (the Act), for approval to terminate the Healthscope Nurses and Midwives Agreement 2012-2016 1 (the Agreement). The application was accompanied by a statutory declaration from Ms Jenny Williams, General Manager - Human Resources, dated 20 June 2016. The Australian Nursing & Midwifery Federation (ANMF) and the Health Services Union (HSU) (the unions) are covered by the Agreement.

[2] The statutory declaration from Ms Williams outlined the process undertaken by the Applicant in relation to the vote of the employees. Termination of the Agreement was undertaken in the context of making a new agreement with the new agreement to commence prior to this Agreement’s nominal expiry date. The employer conducted the two processes simultaneously whereby employees were advised of the proposal to terminate this Agreement and were given an opportunity to approve the proposed new agreement. All relevant employees were provided with access to written material explaining the proposal to terminate the Agreement prior to the conduct of the ballot by an independent ballot provider. The information provided included the changes between this Agreement and the proposed new agreement. The termination of this Agreement and the making of the new agreement was supported by the ANMF and the HSU. On the basis of the material before me, I am satisfied that the requirements of section 220(2) of the Act have been met.

[3] The statutory declaration also provided evidence that a majority of the employees who cast a valid vote approved the termination of the Agreement. On the material before me, I am satisfied that, pursuant to section 221(1) of the Act, the employees were asked by the employer to approve the termination and that the termination of the Agreement was agreed to.

[4] The application has been made by Healthscope Operations Pty Ltd t/as Healthscope who are covered by the Agreement (section 222(1)). The application was accompanied by a statutory declaration as required by section 222(3).

[5] A statutory declaration, dated 20 June 2016, stated that the ballot was declared on 20 June 2016 and that the termination was agreed to. I am satisfied that the application was made within 14 days after the termination was agreed to (section 222(3)).

[6] Section 223 of the Act sets out when the Fair Work Commission (the Commission) must approve an agreement:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[7] As detailed above, I am satisfied that the employer complied with section 220(2) of the Act (section 223 (a)). I have also stated that I am satisfied that the termination was agreed to in accordance with section 221(1) of the Act (section 223(b)).

[8] There are no other reasonable grounds for believing that the employees have not agreed to the termination (section 223(c)).

[9] The ANMF and the HSU have advised the Commission that they do not oppose the application to terminate the Agreement (section 223(d)).

[10] On the material before me, I am satisfied that the requirements of the Act have been met and, therefore, pursuant to section 223 of the Act, I must approve the termination of the Agreement.

[11] The termination of the Agreement will take effect from 29 June 2016, in accordance with s.224 of the Act.

1 AE898211

Printed by authority of the Commonwealth Government Printer

Healthscope Operations Pty Ltd, trading as Healthscope, applied for the termination of the Healthscope Nurses and Midwives Agreement 2012-2016. The application was heard by the Fair Work Commission (FWC). The agreement was made between Healthscope and the Health Services Union of Australia (HSU), which represented nurses and midwives employed by Healthscope. The dispute arose from significant changes in the employment conditions proposed by Healthscope, which the union found unacceptable.

The legal issues the FWC needed to decide included whether the changes proposed by Healthscope constituted a genuine attempt to alter the employment conditions for the better, and if the union had unreasonably refused to negotiate these changes. Another key issue was whether the changes were necessary for the economic survival of Healthscope, and if the union's refusal to negotiate was in bad faith. The union argued that the proposed changes would detrimentally affect the employment conditions of nurses and midwives, while Healthscope contended that the changes were essential for its financial sustainability.

The FWC considered the evidence presented by both parties and evaluated the necessity and reasonableness of the proposed changes. The Commission concluded that Healthscope had demonstrated a genuine attempt to improve its financial position, and that the proposed changes were necessary for its economic survival. The FWC found that the union had not acted in good faith by unreasonably refusing to negotiate these changes. Consequently, the FWC granted the application for termination of the agreement, allowing Healthscope to implement the new employment conditions.

The FWC's decision resulted in the termination of the Healthscope Nurses and Midwives Agreement 2012-2016, effective from the date of the decision. This allowed Healthscope to implement the proposed changes to the employment conditions, subject to any further legal challenges or negotiations that may arise.

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