Medibank Health Solutions Telehealth Pty Ltd

[2018] FWCA 2245

[2018] FWCA 2245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Medibank Health Solutions Telehealth Pty Ltd
(AG2017/6605)

MHST ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER WILSON	MELBOURNE, 23 APRIL 2018

Application for approval of the MHST Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the MHST Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Medibank Health Solutions Telehealth Pty Ltd (Medibank Health Solutions). The Agreement is a single enterprise agreement.

[2] During the initial stages of consideration of the application by the Commission a number of matters were identified to Medibank Health Solutions as being relevant factors for whether or not the Agreement could be approved. Three of the concerns raised by the Commission had been identified in the statutory declaration filed on behalf of the Australian Nursing and Midwifery Federation (ANMF). The three matters were; that inadequate steps had been taken to explain the terms and effects of the Agreement to employees (s.180(5)); whether nursing employees engaged under the Agreement would be better off when compared to the Nurses Award 2010; and that the introduction by Medibank Health Solutions of a new category of employment to be known as “Flexible Employee” was either an unlawful term or a term that was inconsistent with the National Employment Standard.

[3] In respect of the Flexible Employee provision, the ANMF initially put forward two concerns; that the category of employment might result in indirect discrimination against women, thereby being an unlawful term; and secondly that the provisions of the Agreement might mean that a Flexible Employee could be required to work an unreasonable number of additional hours (with reference to the Act’s provisions in s.62(1)(a) and (b), s.55 and s.186 (2) (c)).

[4] Responses provided to the Commission by Medibank Health Solutions largely satisfied the concerns initially held by the Commission in relation to all of these matters. However one matter remained, to do with the Flexible Employee provision. While the Commission was satisfied that the Flexible Employee provision did not amount to an unlawful term it was nonetheless concerned that the scope of the provision might be inconsistent with the National Employment Standards and that an inadequate undertaking had been given by Medibank Health Solutions on the subject. As result, a conference of the parties was conducted by me on Thursday, 12 April 2018 for the purposes of discussing the Commission’s remaining areas of concern; identifying any residual concerns held by the ANMF; and determining the extent to which Medibank Health Solutions may be prepared to provide an alternative undertaking.

[5] In the course of the conference the Commission identified to the Applicant that its remaining concern was to do with a potential lack of clarity about the status of the new Flexible Employee category and whether it was a subset of part-time employment. The Commission also identified its concern that as then drafted the provisions dealing with a Flexible Employee’s hours of work may be insufficiently robust, potentially giving rise both to questions regarding the consistency of the provision with the National Employment Standards as well as whether the Commission can be satisfied that a Flexible Employee was better off overall.

[6] As a result of the matters discussed within the conference, the Applicant has provided revised written undertakings which alleviate the concerns otherwise held by the Commission in relation to its ability to meet the approval requirements set out in ss.186 – 187 of the Act. 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. Following the conference on 12 April 2018, and after being given an opportunity to do so, neither the ANMF or any other bargaining representative has sought to be heard about the proposed approval of the Agreement.

[7] 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.

[8] The ANMF 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 April 2018. The nominal expiry date of the Agreement is 30 November 2020.

COMMISSIONER

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ANNEXURE A