The Hobart Clinic Association t/a The Hobart Clinic

[2020] FWCA 4496

[2020] FWCA 4496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Hobart Clinic Association t/a The Hobart Clinic
(AG2020/1982)

THE HOBART CLINIC HOSPITAL STAFF ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 1 SEPTEMBER 2020

Application for approval of The Hobart Clinic Hospital Staff Enterprise Agreement 2019.

[1] The Hobart Clinic has applied for approval of a single enterprise agreement known as The Hobart Clinic Hospital Staff Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Health Services Union, Tasmania Branch (HSU) was a bargaining representative for the Agreement and gave notice that it supports approval of the Agreement but disagrees with certain statements made in the declaration which accompanied the application. Specifically, in relation to the operation of the dispute resolution procedure and to identify terms of the Agreement that the HSU considers are more beneficial and less beneficial which were either not, or incorrectly, described in the declaration.

[3] The Commission raised concerns in relation to whether the Agreement contravenes s.55 of the Act and passes the better off overall test.

[4] A conference was held, and further information was provided by the Applicant and the HSU, in relation to the matters raised by the HSU and the Commission’s concerns.

[5] In relation to the dispute resolution procedure, clause 37(c)(v) specifies a 21 day timeframe for completion of four steps in the internal dispute resolution process before a dispute may be referred to the Commission for assistance in resolving the dispute. The submissions on this issue may be summarised as follows:

a) The HSU submits that the operation of this clause may have the effect of preventing disputes being made to the Commission, because an employee would be “jurisdictionally barred” from filing a dispute with the Commission if each of the four steps in the internal dispute resolution procedure were not completed within the 21 days (excluding a dispute of urgent or serious nature pursuant to clause 37(d)(i(2)). The HSU contends that The Hobart Clinic may by its conduct make it difficult for an employee to lodge a dispute with the Commission and, for these reasons, the clause may operate contrary to the requirement that the procedure “requires or allows” the Commission to settle disputes pursuant to s.186(6).

b) The Hobart Clinic submits that s.186(6) does not place any restriction on the terms that the parties may agree as to how the dispute resolution procedure is to operate.

[6] Section 186 of the Act sets out general requirements to be met before the Commission must approve an enterprise agreement. Section 186(6) of the Act provides that the Commission must be satisfied that the Agreement includes a term about settling disputes. I am satisfied that the Agreement includes a term that provides a procedure (at clause 37) that requires or allows the Commission to settle disputes about any matters arising under the Agreement and in relation to the NES as required by s.186(6)(a). In this regard, I consider that clause 37 includes adequate safeguards to ensure that a party is not prevented from referring a dispute to the Commission. For example, the procedure provides that the parties may agree an alternative timeframe for referral to the Commission; it allows a dispute to be referred to the Commission more quickly in relation to disputes of an urgent or serious nature; and it requires parties to a dispute to respond in a timely manner, genuinely and promptly endeavour to resolve the dispute. Disputes may also be raised about the operation of this provision.

[7] The Hobart Clinic provided undertakings in accordance with s.190 of the Act, attached at Annexure A (Undertakings). The HSU supported, and the individual employee bargaining representative did not oppose, the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] Noting clause 6 of the Agreement, I am also satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[9] For the above reasons, on the basis of the material contained in the application, further information provided on request of the Commission, having regard to the HSU’s identification of the more beneficial and less beneficial terms and the Undertakings, 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.

[10] The HSU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[11] The Agreement was approved on 1 September 2020 and, in accordance with s.54, will operate from 8 September 2020. The nominal expiry date of the Agreement is 30 September 2022.

DEPUTY PRESIDENT

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Annexure A