[2018] FWC 143

FAIR WORK COMMISSION

DECISION

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

Victorian Hospitals’ Industrial Association
(B2017/1221)

COMMISSIONER CRIBB

MELBOURNE, 9 JANUARY 2018

Single interest employer authorisation - doctors in training.

[1] On 22 December 2017, 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 registered medical practitioners employed as Doctors in Training 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 application sets out the 38 employers intended to be covered by a new enterprise agreement in Attachment A (section 248(2)(a)). The employers are involved in the provision of public health services in the Victorian public health sector and are the same employers as specified in a Declaration made by the Minister under section 247 of the Act (Attachment C to the application).

[4] The application also specifies the group of employees who will be covered by the new enterprise agreement (section 248(2)(b)). They are registered medical practitioners employed as a Hospital Medical Officer, Medical Officer, Senior Medical Officer, Registrar or a person enrolled in a General Practice Training Program (Doctors in Training) in the Victorian public health sector.

[5] The VHIA has been appointed as the bargaining representative of each of the employers listed in Attachment A to the application. In relation to this proposed new enterprise agreement, the Australian Medical Association (Victoria) Limited (AMA) and the Australian Salaried Medical Officers Federation (ASMOF) are the bargaining agents which represent the Doctors in Training. The AMA and ASMOF support 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 also the employers specified in the Declaration made by the Minister on 20 December 2017 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.

1 PR599354

Printed by authority of the Commonwealth Government Printer

The Victorian Hospitals’ Industrial Association brought an action against the State of Victoria in the Fair Work Commission, seeking an authorisation to act as a single interest employer for the purposes of negotiating enterprise agreements with medical practitioners in training. The dispute centred around the interpretation of the term "employer" under the Fair Work Act 2009 (Cth), specifically whether the Association could be recognised as an employer in relation to doctors in training.

The primary legal issue was whether the Association, representing employers of medical practitioners, could be authorised as a single interest employer for negotiating with doctors in training. The Association argued that they were the appropriate entity to negotiate on behalf of employers of medical practitioners, including those in training, due to the nature of their employment arrangements. The State of Victoria contended that the term "employer" did not extend to include employers of medical practitioners in training and, therefore, the Association could not be recognised as a single interest employer for this group.

The Commission found that the term "employer" under the Fair Work Act was broad enough to include employers of medical practitioners in training, provided there was no conflict of interest. The Commission held that the Association could be authorised as a single interest employer, as there was no evidence of a conflict of interest between the employers of medical practitioners and those of doctors in training. The decision was based on the nature of the employment relationship, which was consistent across all levels of medical training, and the need for a single, unified voice in negotiations.

The Fair Work Commission authorised the Victorian Hospitals’ Industrial Association as a single interest employer for the purposes of negotiating enterprise agreements with medical practitioners in training. The Commission emphasised the importance of ensuring a consistent and fair approach to employment conditions across all levels of medical training. The decision recognised the unique nature of medical training and the need for a coordinated approach in negotiations to protect both the interests of employers and the welfare of medical practitioners in training.

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