Victorian Hospitals’ Industrial Association

[2017] FWC 427

[2017] FWC 427

FAIR WORK COMMISSION

DECISION

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

Victorian Hospitals’ Industrial Association
(B2017/53)

COMMISSIONER CRIBB MELBOURNE, 19 JANUARY 2017

Single interest employer authorisation - public mental health services.

[1] On 12 January 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 employees employed in public mental health services and who are employees of 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;
(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.”

[3] The application sets out the 19 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 mental 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 employees involved in the provision of public mental health services 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 Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) (HSU Victoria No. 2 Branch, trading as the Health and Community Services Union) are the relevant registered organisations which represent mental health services employees. The ANMF and the HSU 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

(c) any combination of the above.

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 2 May 2016 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   PR589566

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<Price code A, PR589564>