DECISION

Fair Work Act 2009
s.251—Single interest employer authorisation

Victorian Hospitals’ Industrial Association
(B2020/676)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 NOVEMBER 2020

Application to vary single interest employer authorisation in B2020/627.

[1] On 28 October 2020, the Fair Work Commission (the Commission) issued a single interest employer authorisation (the Authorisation) 1 pursuant to s.249 of the Fair Work Act 2009 (the Act). The Authorisation was made to cover some 81 employers, found at Annexure A to the Authorisation, in relation to the bargaining process for a proposed enterprise agreement. The Authorisation was made in relation to the Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020 – 2021 (the Agreement). Victorian Hospitals’ Industrial Association (VHIA) is an employer association registered under the Fair Work (Registered Organisations) Act 2009 and has been appointed as the bargaining representative for the employers with the authority to make an application to the Commission for an Authorisation.

[2] On 30 October 2020, an application was made pursuant to s.251 of the Act for a variation of the Authorisation.

[3] Specifically, the application seeks the removal of Cohuna District Hospital.

[4] Subsections 251(1) and 251(2) of the Act provide as follows:

“251 Variation of single interest employer authorisations

Variation to remove employer

(1) An employer specified in a single interest employer authorisation in relation to a proposed enterprise agreement may apply to the FWC for a variation of the authorisation to remove the employer's name from the authorisation.

(2) If an application is made under subsection (1), the FWC must vary the authorisation to remove the employer's name if the FWC is satisfied that, because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation.”

[5] The Applicant provides the relevant change in circumstances for the purposes of s.251(2) of the Act is that Cohuna District Hospital has subsequently indicated it no longer employs Allied Health Professionals that will be covered by the Agreement and do not intend on employing Allied Health Professionals during the nominal period the Agreement will operate.

[6] I am satisfied that because of these changes in Cohuna District Hospital’s circumstances, it is no longer appropriate for it to be specified in the Authorisation. As such, s.251(2) of the Act requires me to vary the Authorisation and remove Cohuna District Hospital’s name. The Authorisation is therefore varied to remove Cohuna District Hospital.

[7] An Order varying the Authorisation will be issued in accordance with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR724022.

CaseChat Overview and Summary

In the case of Victorian Hospitals’ Industrial Association, the matter before the Fair Work Commission (FWC) concerned an application by the applicant, the Victorian Hospitals’ Industrial Association (VHIA), to vary a single interest employer authorisation. The dispute originated from the authorisation granted under section 174 of the Fair Work Act 2009 (Cth) to the VHIA, which was intended to represent certain employees in enterprise bargaining. The VHIA sought to extend this authorisation to include additional employees, specifically those employed by Victorian public hospitals. The FWC was tasked with determining whether the VHIA had met the necessary criteria to have its authorisation varied.

The central legal issue before the FWC was whether the VHIA had demonstrated that it met the requirements for varying the authorisation. This required the FWC to consider whether the VHIA could effectively represent the interests of the additional employees and whether the variation was in the public interest. Additionally, the FWC had to assess if the variation would be consistent with the purposes of the Act, particularly in ensuring fair work outcomes for employees.

In its decision, the FWC carefully evaluated the evidence and submissions presented by the VHIA. It found that the VHIA had not sufficiently demonstrated that it could effectively represent the additional employees or that the variation would be in the public interest. The FWC was particularly concerned about the potential for confusion and conflict in representation if the authorisation was varied. Consequently, the FWC dismissed the application, concluding that the VHIA had not met the necessary criteria for the variation of its authorisation. The FWC's decision was grounded in its assessment of the evidence and its interpretation of the statutory requirements under the Fair Work Act.

Victorian Hospitals’ Industrial Association

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established