Victorian Hospitals' Industrial Association

[2023] FWCA 2244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a multi-enterprise agreement

Victorian Hospitals' Industrial Association

(AG2023/1923)

HEALTH AND ALLIED SERVICES, MANAGERS AND ADMINISTRATIVE WORKERS (VICTORIAN STAND-ALONE COMMUNITY HEALTH SERVICES (MULTI EMPLOYER) ENTERPRISE AGREEMENT 2022 – 2026

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 21 JULY 2023

Application for approval of the Health and Allied Services, Managers and Administrative Workers (Victorian Stand-Alone Community Health Services) (Multi Employer) Enterprise Agreement 2022 – 2026

An application has been made for approval of an enterprise agreement known as the Health and Allied Services, Managers and Administrative Workers (Victorian Stand-Alone Community Health Services) (Multi Employer) Enterprise Agreement 2022 – 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Victorian Hospitals’ Industrial Association. The Agreement is a multi-enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, 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.

The Health Services Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

· Clause 65.5 – Community Service Leave

However, noting clause 5.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 July 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Victorian Hospitals' Industrial Association, representing various employers, sought approval of the Health and Allied Services, Managers and Administrative Workers (Victorian Stand-Alone Community Health Services) (Multi Employer) Enterprise Agreement 2022 – 2026. The application was heard by the Fair Work Commission, which was required to determine if the agreement was in the public interest and met the requirements of the Fair Work Act 2009. The dispute involved a number of stakeholders, including employees, employers, and the public interest.

The primary legal issues before the court were whether the agreement met the threshold criteria for approval under the Fair Work Act, specifically focusing on whether the agreement was in the public interest and did not undermine the protections provided by the Act. The court also needed to assess whether the agreement provided for appropriate terms and conditions for employees, including minimum rates of pay, leave entitlements, and other workplace standards. Furthermore, the court examined whether the agreement adequately provided for the resolution of workplace disputes.

The Fair Work Commission found that the agreement was in the public interest and met the necessary criteria for approval. The court considered the economic and operational context of the community health services sector, noting the importance of maintaining quality and accessible health services. The agreement was found to provide for fair and reasonable terms and conditions for employees, including appropriate minimum rates of pay and leave entitlements. The court also found that the dispute resolution provisions in the agreement were adequate. As a result, the commission approved the enterprise agreement.

The final orders of the commission included the approval of the Health and Allied Services, Managers and Administrative Workers (Victorian Stand-Alone Community Health Services) (Multi Employer) Enterprise Agreement 2022 – 2026, effective from the date of the decision. The agreement was to apply to the relevant employees and employers, and the commission noted that ongoing compliance with the Fair Work Act would be necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established