Victorian Hospitals' Industrial Association on behalf of Albury Wodonga Health and Others
[2025] FWC 96
•17 JANUARY 2025
| [2025] FWC 96 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Victorian Hospitals' Industrial Association on behalf of
Albury Wodonga Health and Others
(B2024/1688)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 17 JANUARY 2025 |
Application for a proposed single interest employer authorisation.
The matter concerns an application by the Victorian Hospitals’ Industrial Association (VHIA) made on behalf of 19 employers, namely:
· Albury Wodonga Health (ABN 31 569 743 618);
· Alfred Health (ABN 27 318 956 319);
· Austin Health (ABN 96 237 388 063);
· Grampians Health (ABN 39 089 584 391);
· Barwon Health (ABN 45 877 249 165);
· Bendigo Health (ABN 26 875 445 912);
· Eastern Health (ABN 68 223 819 017);
· Goulburn Valley Health (ABN 69 541 423 898);
· Latrobe Regional Health (ABN 18 128 843 652);
· Melbourne Health (ABN 73 802 706 972);
· Mercy Hospitals Victoria Ltd (ABN 74 762 230 429);
· Mildura Base Public Hospital (ABN 73 543 496 421);
· Monash Health (ABN 82 142 080 338);
· Northern Health (ABN 42 986 169 981);
· Peninsula Health (ABN 52 892 860 159);
· The Royal Children’s Hospital (ABN 35 655 720 546);
· St. Vincent's Hospital (Melbourne) Limited (ABN 22 052 110 755);
· South West Healthcare (ABN 41 189 754 233); and
· Western Health (ABN 61 166 735 672).
I will refer to these employers collectively as the Applicant Employers. Each of the Applicant Employers provides, amongst other services, public mental health services in Victoria.
The Applicant Employers seek a single interest employer authorisation under s.248 of the Fair Work Act 2009 (FW Act). This provision is found in Division 10 of Part 2-4 of the FW Act. The Authorisation would permit the Applicant Employers to bargain together for a proposed multi-employer enterprise agreement to replace the Victorian Public Mental Health Services Enterprise Agreement 2020-2024[1] (2020 Agreement), which covers the majority of the Applicant Employers and their eligible employees, and has reached its nominal expiry date of 31 December 2024.
I note that Northen Health and Western Health were not a named party at the commencement of the 2020 Agreement. However, both employers subsequently became a designated mental health service provider and Orders[2] were made that the 2020 Agreement cover each employer in respect of non-transferring employees who perform the work contained within the classification structure of the 2020 Agreement.
The employees to be covered by the proposed Authorisation and enterprise agreement are:
· Mental Health Service Officers;
· Facilities Services Officers;
· Registered Nurses;
· Enrolled Nurses;
· Health Professionals;
· Lived Experience Workers;
· Health and Allied Service Employees;
· Managers; and
· Administrative Officers.
The proposed Authorisation is to cover only those employees employed solely or predominantly in the provision of Public Mental Health Services, which refers to the service, department, unit or program of the Employer rather than the duties of an individual employee.[3]
The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) in the form of the Health and Community Services Union (HACSU) represents employees who would be covered by the proposed Authorisation and enterprise agreement. Both the ANMF and HSU support the application.
Given the absence of any objections and any request for a hearing to be conducted, I have, with the concurrence of the parties, considered this application on the papers. Having done so, I have granted the application and now issue the Authorisation as sought. My reasons for doing so are outlined below.
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) making bargaining 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.”
While the Act has previously provided for single interest authorisations,[4] the basis and operation of the authorisations was significantly amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act).
Sections 248 to 250 of the FW Act now provides:
“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 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 involved. In this case, the applicants are employers who seek to bargain together and so the “additional” requirements of s.249(1A) apply and the terms of s.249(1B) and consequential provisions do not.
The Applicant Employers are all likely to each employ more than 50 Employees at the time the application was made. This would mean that 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), apply. I observe that 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 behalf of the Applicant Employers who would be covered by the proposed agreement. The application specifies the required matters, including the person nominated by the employers to make applications under the FW Act if the Authorisation is made.[5] 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?
I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation.[6] The Applicant Employers employ one or more persons who are a member of, and are represented by, either the ANMF or HSU/HACSU.
Have the Parties had the opportunity to express their views?
I am satisfied that the Applicant Employers, the ANMF, and the HSU/HACSU as the respective bargaining representatives of the employees have had the opportunity to express their views on the proposed authorisation.[7] This included an additional opportunity provided after the application was lodged with the Commission.
Accordingly, all of the relevant parties have had the opportunity to express their views and some have provided submissions confirming their views on the proposed Authorisation. All doing so have supported the Authorisation being made.
Have the Applicant Employers agreed to bargain together?
I am satisfied that the employers that will be covered by the agreement have agreed to bargain together, and that no person coerced, or threatened to coerce, any of the employers to so agree.[8]
In this regard and more generally, I observe that the Applicant Employers have a long-standing history of bargaining together, including under two previous single-interest employer authorisations or their equivalent.
Have the requirements of either ss.249(2) or 249(3) been met?
In this instance, it is s.249(3) of the FW Act that applies here. That is, the Applicant Employers must meet the common interest and the ‘not contrary to public interest’ requirements.
In Application by UWU, AEU and IEU,[9] 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,[10] the notion of what may be common interests in the above approach is of guidance.
In Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd and others,[11] the Full Bench concluded in relation to the common interest requirements of s.249(3):
“[354] We conclude that the test that we are required to consider is whether the (Respondent) Employers have joint, shared, related or like characteristics, qualities, undertakings or concerns that will impact or influence them in relation to bargaining for an enterprise agreement that will cover the SIEA employees. … …”
I am satisfied that the Applicant Employers have clearly identifiable common interests.[12] Amongst other matters, the following factors identified in the application, and which apply to each employer, confirm that finding:
· Geographical location – all of the Employers have sites located in Victoria. Patients and clients often transfer between the relevant employers for different aspects of their treatment for single or multiple morbidities.
· Regulatory regime – the majority of employers are regulated by the Health Services Act 1988 (Vic) and as designated mental health services are regulated by the Mental Health Act 2014 (Vic).
· Nature of the enterprise to which the agreement relates and the terms and conditions of employment in enterprise agreements –
· Each Applicant Employers’ scope of business is in the provision of Health and Welfare Services.
· The relevant employers (or their predecessors) have a long-standing history of bargaining together in respect of industrial instruments covering Mental Health Employees. The Applicant Employers and their Employees have been covered by the same Commonwealth industrial awards and agreements in the same or substantially the same terms since at least 1992.
· The core terms and conditions of employment for the Employees are the same at each Applicant Employer because they are all covered by the 2020 Agreement which prescribes the Employees minimum terms and conditions. A single agreement across the State facilitates the efficient operation of the bargaining process and the movement of workers across the sector along with their personal leave and long service leave entitlements.
Having regard to all of the circumstances of this matter I am also satisfied that it is not contrary to the public interest to make the Authorisation.[13]
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 Applicant Employers are reasonably comparable with those of the other employers that will be covered by the Agreement. The following factors, supported by evidence before the Commission, create the context for such a finding:
· Each Applicant Employer delivers broadly consistent health services to the Victorian Community.
· Each Applicant Employer has the common goal of attracting and retaining Employees.
· Each Applicant Employer has the same objective to provide health services to the State of Victoria and operate collaboratively to meet that objective.
· Each Applicant Employer is substantially funded by the State of Victoria and are therefore subject to the same funding arrangements, which impact directly on their operations and bargaining position.
I observe that these factors are also relevant in this case to the earlier finding of common interests under s.249(3) of the FW Act.
General building and construction work
The Agreement will not cover employees in relation to general building and construction work. This meets the requirements of s.251A of the FW Act.
Other matters
The proposed Authorisation specifies each of the matters required by s.250(1) of the FW Act.
The findings made apply to all of the Applicant 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.
Conclusions
Given my satisfaction with all of the relevant requirements, I am obliged to issue the Authorisation under s.249(1) of the FW Act.
The Authorisation has been issued separately in PR783191.
Pursuant to s.249(4) of the FW Act, this Authorisation comes into operation on the day it is made (17 January 2025) and will cease to have effect on the earlier of the day on which the proposed enterprise agreement is made or 12 months after the date of this Authorisation, subject to any extension pursuant to s.252.
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
[1] AE516311.
[2] PR745211 and PR763494, respectively.
[3] This is consistent with the coverage of the 2020 Agreement.
[4] Sections 247 – 252 of the FW Act as it stood prior to the operation of the SJBP Act.
[5] Section 248(2)(c) of the FW Act – confirmed to be the Victorian Hospitals’ Industrial Association.
[6] Section 249(1)(b)(i) of the FW Act.
[7] Section 249(1)(b)(ii) of the FW Act.
[8] Section 249(1A) of the FW Act.
[9] [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].
[10] Section243(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.
[11] [2024] FWCFB 253.
[12] Section 249(3)(a) of the FW Act.
[13] Section 249(3)(b). See more generally the discussion of this aspect in Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shirs Counsil, Ararat Rural City Council[2024] FWCFB 444 at [69] to [80].
Printed by authority of the Commonwealth Government Printer
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