[2018] FWC 5761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.248—Single interest employer authorisation

Victorian Hospitals’ Industrial Association
(B2018/766)

COMMISSIONER CRIBB

MELBOURNE, 13 SEPTEMBER 2018

Single interest employer authorisation.

[1] On 24 August 2018, the Victorian Hospitals’ Industrial Association (VHIA) made an application for a Single Interest Employer Authorisation under section 248 of the Fair Work Act 2009 (the Act). The application concerns a new enterprise agreement to cover Dental Hygienists, Dental Therapists and Oral Health Therapists employed by the employers specified in the application.

[2] Section 248 of the Act is as follows:

“248 Single interest employer authorisations

(1) Two or more employers may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement.

Note: The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)).

(2) The application must specify the following:

(a) the employers that will be covered by the agreement;

(b) the employees who will be covered by the agreement;

[3] The 24 employers to be covered by the new enterprise agreement are involved in the provision of public health services in the Victorian public health sector. They are the employers as specified in a Declaration made by the Minister on 24 July 2018 under section 247 of the Act (Attachment D to the application).

[4] The application specifies the group of employees who will be covered by the new enterprise agreement (section 248(2)(b)). They are Dental Hygienists, Dental Therapists and Oral Health Therapists in the Victorian public health sector (other than those employed predominantly in the provision of community health services).

[5] The VHIA has been appointed as the bargaining representative of each of the employers listed in the application. In relation to the proposed new enterprise agreement, the Community and Public Sector Union (CPSU) is the relevant registered organisation which represents these employees. The CPSU supports the application by the VHIA for a single interest employer authorisation.

[6] The effect of the authorisation sought is to allow two or more single interest employers to bargain together in relation to a new enterprise agreement. Section 249 of the Act specifies when the Fair Work Commission must make a single interest employer authorisation:

“249 When the FWC must make a single interest employer authorisation

Single interest employer authorisation

(1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:

(a) an application for the authorisation has been made; and

(b) the FWC is satisfied that:

(i) the employers that will be covered by the agreement have agreed to bargain together; and

(ii) no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and

(c) the requirements of either subsection (2) (which deals with franchisees) or (3) (which deals with employers that may bargain together for a proposed enterprise agreement) are met.

Franchisees

(2) The requirements of this subsection are met if the FWC is satisfied that the employers carry on similar business activities under the same franchise and are:

(a) franchisees of the same franchisor; or

(b) related bodies corporate of the same franchisor; or

Employers that may bargain together for the agreement

(3) The requirements of this subsection are met if the FWC is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.

Operation of authorisation

(4) The authorisation:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earlier of the following:

(i) the day on which the enterprise agreement to which the authorisation relates is made;

(ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.”

[7] Having considered the material before me, I am satisfied, pursuant to section 249(1), that the employers who will be covered by the proposed new enterprise agreement have freely agreed to bargain together. I am also satisfied that no person has coerced, or threatened to coerce, any of those employers, to bargain in this way.

[8] I am also satisfied that the employers specified in the application are the employers specified in the Declaration made by the Minister on 24 July 2018 under section 247 of the Act (section 249(3)).

[9] Therefore, in accordance with section 249(1) of the Act, I must make a single interest employer authorisation in relation to the proposed enterprise agreement.

[10] The authorisation will come into operation on the day on which it is made, which is the date of this decision. The authorisation will cease to be in operation on the day which the proposed new enterprise agreement is made or twelve months from the day of the authorisation, whichever is earlier.

[11] The authorisation 1 giving effect to this decision will be issued separately.

Printed by authority of the Commonwealth Government Printer

1 PR700353

The matter involved the Victorian Hospitals’ Industrial Association and the Fair Work Commission. The dispute centred on whether the Association was eligible to be a single interest employer for the purpose of obtaining authorisation to take industrial action. The Federal Court of Australia was tasked with reviewing the Commission's decision.

The primary legal issue was the interpretation of the term "single interest employer" as defined under the Fair Work Act 2009. Specifically, the court had to determine whether the Association qualified as an employer representing a single interest, given that it represented multiple hospitals with potentially differing industrial interests. The court examined whether the common objective of improving healthcare services was sufficient to constitute a single interest or if the diverse operations of the hospitals involved created multiple interests.

The court held that the term "single interest employer" required a unified purpose or objective that transcended the specific interests of individual members. The court found that the Association's representation of multiple hospitals, each with its own operational dynamics and interests, did not meet the threshold for a single interest employer. The court concluded that the diversity of operations and interests among the hospitals was too significant to qualify the Association as a single interest employer for the purposes of industrial action. The court's decision was grounded in a strict interpretation of the statutory language, emphasising the need for a cohesive and unified interest across all members.

As a result, the court upheld the Commission's decision, affirming that the Association did not qualify for authorisation to take industrial action as a single interest employer. This ruling underscored the importance of a clear and singular interest among all members for authorisation to be granted.

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