Victorian Hospitals' Industrial Association
[2024] FWC 1563
•19 JUNE 2024
| [2024] FWC 1563 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Victorian Hospitals’ Industrial Association
(B2024/723)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 19 JUNE 2024 |
Application for a single interest employer authorisation – proposed Dental Therapists, Dental Hygienists and Oral Health Therapists (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2024 – 2028 – authorisation made.
The application
This matter concerns an application by the Victorian Hospitals’ Industrial Association (VHIA) under s.248 of the Fair Work Act 2009 (FW Act) for a single interest employer authorisation (Authorisation), on behalf of 19 health care employers (Applicant Employers). The Authorisation is sought in respect of bargaining for an enterprise agreement to cover Dental Therapists, Dental Hygienists and Oral Health Therapists employed by the Applicant Employers and undertaking work, in effect, as part of the Victorian Public Health system (Employees). The Health Services Union – Victoria No. 3 Branch, which operates under the name of the Victorian Allied Health Professionals Association (VAHPA) is the bargaining representative of the Employees and is supporting the application. This has been confirmed through the provision of correspondence from Craig MacGregor, Branch Secretary, dated 29 May 2024.
The application seeks the Authorisation for the purposes of negotiating the Dental Therapists, Dental Hygienists and Oral Health Therapists (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2024 – 2028 (Proposed Agreement).
On 19 June 2024, I conducted a short hearing to deal with a limited number of issues that I had identified with the application. These issues have been clarified and the following are the reasons for granting the application and making the proposed Authorisation.
In 2023, a Full Bench of the Commission relatively recently dealt[1] with the relevant legislative amendments to the FW Act made by virtue of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act), which commenced on 6 June 2023. The Full Bench set out the legislative framework for an application of this kind.[2] I have adopted that approach.
The statutory context
The objects of Part 2-4 of the FW Act are set out in s.171 as follows:
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) makingbargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
The FW Act has previously provided for single interest authorisations;[3] however the basis and operation of the authorisations was significantly amended by the SJBP Act.
Sections 248 to 250 of the FW Act now provide:
“248 Single interest employer authorisations
(1) The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:
(a) those employers;
(b)a bargaining representative of an employee who will be covered by the agreement.
(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.
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) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and
(ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and
(iii) if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and
(iv) if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and
(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and
(vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.
(1AA) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.
Additional requirements for application by employers
(1A) The requirements of this subsection are met if:
(a) the employers that will be covered by the agreement have agreed to bargain together; and
(b) no person coerced, or threatened to coerce, any of the employers to agree to bargain together.
Additional requirements for application by bargaining representative
(1B) An employer is covered by this subsection if:
(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and
(b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and
(c) the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and
(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and
(e) subsection (1D) does not apply to the employer.
(1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(1D) This subsection applies to an employer if:
(a) the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or
(b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.
Franchisees
(2) The requirements of this subsection are met if 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.
Common interest employers
(3) The requirements of this subsection are met if:
(a) the employers have clearly identifiable common interests; and
(b) it is not contrary to the public interest to make the authorisation.
(3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:
(a) geographical location;
(b) regulatory regime;
(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.
(3AB) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.
Calculating number of employees
(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):
(a) employee has its ordinary meaning; and
(b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and
(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and
(d) associated entities of the employer are taken to be one entity.
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) at the same time as 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.
249A Restriction on making single interest employer authorisations
The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.
250 What a single interest employer authorisation must specify
What authorisation must specify
(1) A single interest employer authorisation in relation to a proposed enterprise agreement 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;
(d) any other matter prescribed by the procedural rules.
Authorisation may relate to only some of employers or employees
(2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.
(3) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:
(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and
(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and
(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).
(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.”
The Explanatory Memorandum to the SJBP Act described the purpose of the amendments leading to these revised provisions in the following terms:
“1006. Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by:
· removing the requirement for two or more employers with common interests who are not franchisees to obtain a Ministerial declaration before applying a single interest employer authorisation;
· providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees;
· permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and
· inserting new Subdivision AD—Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements.”[4]
… …
1066. New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term ‘common interest employers’ would be introduced by these amendments and used to identify those employers who may be included in a single interest employer authorisation but who are not franchisees.”[5]
Should the Authorisation be made?
The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the applicant and the circumstances of the employers. In this case, the applicant is the VHIA, acting on behalf of each of the Applicant Employers who are to be covered by the proposed agreement (s.248(1)(a)), rather than a bargaining representative of an employee who would be covered (s.248(1)(b)). This means that the “additional” requirements of s.249(1A) apply, and the terms of s.249(1B) and related provisions do not. [6]
I observe that the application does not disclose the number of employees engaged at each of the Applicant Employers. As the application was made by the employers, there is no requirement that they each employ at least 20 employees – s.249(1B)(a) of the FW Act. Further, the ‘rebuttable presumptions’ concerning the common interest and public interest requirements of s.249(3), and the reasonable comparability of operations and business activities of the employers under s.249(1)(b)(vi), may apply to at least some of the Applicant Employers – those who have more than 50 employees. However, the application has been dealt with on its own basis without reliance on that provision and I am in any event satisfied about those matters based upon the common materials before the Commission.
In deciding to make the Authorisation, I am satisfied that all the relevant requirements under ss.249 and 249A of the FW Act have been met. I briefly deal with each in turn.
Was a valid application made?
An application was made by the VHIA on 4 June 2024. The VHIA is acting on behalf of the Applicant Employers who will be covered by the proposed agreement. The application as amended during the hearing specifies the required matters, including the person nominated by the employers to make applications.[7] I am satisfied that the requirements under ss.248 and 249(b)(i) of the FW Act have been met.
Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?
The VAHPA is a branch of an employee organisation registered under the terms of the FW Act and is (and has been) representing the employees in bargaining for the Proposed Agreement. Accordingly, I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation.[8]
Has each employer that will be covered by the agreement agreed to bargain together?
It is apparent that each of the Applicant Employers has consented to the application and agreed to bargain together. They have individually provided written authorisations to the VHIA to make this application and issued employees with a notice to initiate the bargaining. I am also satisfied that no person has coerced or threatened to coerce any of them to do so. This meets the requirements of s.249(1A) of the FW Act.
Have the Parties had the opportunity to express their views?
I am satisfied that the Applicant Employers and the bargaining representatives (including the VAHPA) have had the opportunity to express their views on the proposed Authorisation.[9]
The relevant parties have also provided submissions confirming their views, and all have supported the Authorisation being made.
Have the requirements of either ss.249(2) or 249(3) been met?
This application relies upon the proposition that the Applicant Employers have a common interest under s.249(3) of the FW Act. This also requires that the Commission be satisfied that it is not contrary to the public interest to make the Authorisation.
In Application by UWU, AEU and IEU,[10] the Full Bench said the following in relation to the expression ‘common interests’ in s.243(1)(b)(ii) in connection with applications for supported bargaining authorisations:
“…the expression ‘common interests’ used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application is one of wide import, and on its ordinary meaning extends to any joint, shared, related or like characteristics, qualities, undertakings or concerns as between the relevant employers. The diversity of the non-exhaustive list of ‘examples’ of common interests in s 243(2) gives contextual support to the breadth of meaning which we assign to the expression. The common interests must be ‘clearly identifiable’, that is, plainly discernible or recognisable, but need not be self-evident.”
Noting the different role to be played by the “non-exhaustive lists” of ‘common interests’ that are expressed in the two sections involved,[11] the notion of what may be common interests in the above approach is of guidance.
I am satisfied that the Applicant Employers have clearly identifiable common interests.[12] Amongst other matters, the following factors that apply to each employer confirm that finding:
· They are all regulated by the Health Services Act 1988 (Vic).
· They are all involved in the provision of public health and welfare services and have the same operational objectives.
· They are all substantially funded by the State of Victoria and this common funding impacts directly upon their bargaining position.
· They have a relatively long history of bargaining together.
· They are covered by the same instruments made under the FW Act.
· The core terms and conditions of employment for the relevant employees are substantially the same at each Employer.
· They each have an interest in factors which impact upon the movement of employees across the health sector.
I observe that the above are either the common interests, or provide the basis for the common interests, that satisfy the immediate test.
I am also satisfied that it is not contrary to the public interest to make the Authorisation.[13] Amongst the factors supporting this finding are that making the Authorisation will facilitate:
· The continuation of collective bargaining practice in the public health sector.
· Equity across the Victorian public health sector.
· More efficient bargaining given the history and circumstances of the parties.
· Continued portability of some entitlements.
Accordingly, I am satisfied that the requirements under s.249(3) of the FW Act have been met.
Do the Applicant Employers have reasonably comparable operations and business activities?
As the requirements of s.249(3) have been met, s.249(1)(b)(vi) of the FW Act requires that the operations and business activities of each of the respondent employers are reasonably comparable with those of the other employers that will be covered by the Agreement. The material canvassed earlier in this decision and that set out in the application itself strongly supports the proposition that this is so.
I am satisfied that the requirements under s.249(1)(b)(vi) of the FW Act have been met.
General building and construction work
The Proposed Agreement will not cover employees in relation to general building and construction work.[14]
Other matters
The application specifies each of the matters required by s.250(1) of the FW Act.
The findings made apply to all of the Employers and for the purposes of s.250(2) of the FW act I am satisfied that each should be specified in the Authorisation.
The circumstances contemplated in ss.250(3) and (4) do not apply.
The application discloses that one of the Applicant Employers, Seymour Health, employs only 1 single employee within the scope of Employees to be covered. It is also contended that this is unlikely to change.
Section 172(6) of the FW Act provides as follows:
“172 Making an enterprise agreement
… …
Requirement that there be at least 2 employees
(6) An enterprise agreement cannot be made with a single employee.”
The VHIA and the VAHPA sought the inclusion of Seymour health in the Authorisation. The VHIA also indicated that if this posed an issue for the making of the Authorisation, it would reluctantly amend the application. Ultimately, I did not require that course of action.
The provision concerned was introduced in 2012 as part of the Fair Work Amendment Act 2012 (Cth).[15] The amendment was in response to a recommendation of the Fair Work Act Review Panel (the Panel) which completed its deliberations and delivered its report – Towards more productive and equitable workplaces: An evaluation of the fair work legislation (the Report) – in June 2012.
The basis of the recommendation in the Report was as follows:
“It is clear from our review of the policy material underlying the development of the FW Act that the scheme introduced by it expressly excluded the capacity to make a statutory individual contract. An enterprise agreement with one employee appears to us to be just that. In addition, the mechanism for individual flexibility associated with enterprise agreements and awards was intended to be individual flexibility arrangements. With the benefit of considering this broader range of policy material, in our view enterprise agreements should not be permitted with only one employee.”[16]
This recommendation was not considered in the context of multiple employer (or enterprise) agreements and probably never intended to address the kind of outcome speculated by the parties here. However, the provisions must be applied having regard to the objects and the terms to the FW Act as a whole, in light of the statutory intention.
Section 182 sets out when an enterprise agreement is made. This is relevant to the restriction in s.172(6). For a multi-enterprise agreement, such as would be involved here, s.182 relevantly provides that it is made when a majority of the employees of at least one of the employers cast a vote to approve the agreement.[17]
On face value, as the enterprise agreement concerned would be a multi-enterprise agreement, the fact that it is made when the approval of the majority of employees of at least one of the employers is achieved, does not mean that there is a (separate) enterprise agreement at each of the workplaces that approves the agreement. Rather, it remains a multi-enterprise agreement that would cover and apply to all of the employers (and their employees) where a majority have approved the agreement.[18] Further, there would appear to be a distinction between when the agreement was made and who the agreement is made with. If that approach is sound, s.172(6) may have work to do where the only workplace that approves the proposed multi-enterprise agreement is Seymour Health. However, given that this would only arise in such limited and unlikely circumstances and is not relevant to any statutory requirements for making the Authorisation, I do not need to determine that aspect now.
The Authorisation has been issued with Seymour Health included.
Conclusions
Given satisfaction with all of the relevant requirements, I am obliged to issue the Authorisation under s.249(1) of the FW Act. The Authorisation includes all of the matters required by s.250.
The Authorisation has been issued separately in PR776072.
The Commission stands ready to assist the parties with the bargaining for the proposed multi-employer agreement should that be sought, such as under a s.240 application or a joint request to conduct a collaborative approaches process to utilise interest-based bargaining.
DEPUTY PRESIDENT
Appearances:
E Scott for the Victorian Hospitals’ Industrial Association.
A Lesczynski for the Health Services Union– Victoria No. 3 Branch.
Hearing details:
2024
19 June
MS Teams video.
[1] Independent Education Union of Australia v Catholic Education Western Australia Limited & Ors[2024] FWC 482.
[2] The Full Bench’s approach was followed in VHIA v ANMF and HSU [2024] FWC 482.
[3] Sections.247 – 252 of the FW Act as it stood prior to the operation of the SJBP Act.
[4] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1006].
[5] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1066].
[6] Section 249(1)(b)(iv) of the FW Act.
[7] Section 248(2)(c) of the FW Act.
[8] Section 249(1)(b)(i) of the FW Act.
[9] Section 249(1)(b)(ii) of the FW Act.
[10] [2023] FWCFB 176 at [34] as applied to a single interest employer authorisation application in Independent Education Union of Australia v Catholic Education Western Australia limited and others[2023] FWCFB 1177 at [31].
[11] Section.243(2) provides examples of common interests whereas in s.249(3A) the factors are matters that may be relevant to determining whether the employers have a common interest.
[12] Section 249(3)(a) of the FW Act.
[13] Section 249(3)(b).
[14] Section 249A of the FW Act.
[15] Item 1 of Schedule 4.
[16] Report page 168 leading to recommendation 26.
[17] Section 182(2) of the FW Act.
[18] See s.184 and the combined impact of ss.52 and 53 of the FW Act if the Proposed Agreement is approved by the Commission.
Printed by authority of the Commonwealth Government Printer
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