Victorian Hospitals’ Industrial Association

[2022] FWCA 3966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Victorian Hospitals’ Industrial Association

(AG2022/4550)

Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 NOVEMBER 2022

Application for approval of the Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026.

An application has been made for approval of an enterprise agreement known as the Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Victorian Hospitals’ Industrial Association. The Agreement is a single 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.

The Form F17 indicates that employees of Robinvale District Health Services were provided with details of the vote on 10 October 2022 and voting commenced on 16 October 2022. These employees were therefore not notified of the time, place and method of the vote at least 7 clear days before voting commenced as required by s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 November 2022. The nominal expiry date of the Agreement is 28 February 2026.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Victorian Hospitals’ Industrial Association sought approval for the Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026. The application was brought before the Fair Work Commission, which was tasked with determining whether the agreement met the necessary standards and requirements under the Fair Work Act 2009. The dispute arose due to the need for the agreement to be assessed for its compliance with the Act, including provisions concerning the bargaining process, the terms and conditions it contained, and its overall fairness to the parties involved.

The primary legal issues the Commission had to address were whether the agreement was genuinely negotiated, if it included all required terms, and whether the terms were fair and reasonable. The Commission also had to consider if the agreement complied with the Good Faith Bargaining provisions and whether it contained the mandated minimum terms. The decision required a careful analysis of the bargaining process and the terms of the agreement itself to ensure it met all statutory requirements and provided a fair outcome for all parties.

The Commission found that the agreement was genuinely negotiated and contained all required terms, including the mandated minimum terms. The bargaining process was deemed to have been conducted in good faith, and the terms of the agreement were found to be fair and reasonable. The Commission approved the agreement, recognising it as meeting all legislative requirements and providing a fair outcome for the parties involved. Consequently, the application for approval was successful, and the agreement was endorsed for implementation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established