Victorian Hospitals' Industrial Association T/A Victorian Hospitals' Industrial Association

[2024] FWC 3427

[2024] FWC 3427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.248—Single interest employer authorisation

Victorian Hospitals’ Industrial Association T/A Victorian Hospitals’ Industrial Association

(B2024/1569)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 DECEMBER 2024

s.248 – Application by Victorian Hospitals’ Industrial Association T/A Victorian Hospitals’ Industrial Association

1. On 29 November 2024, an application was made to the Fair Work Commission by the Victorian Hospitals’ Industrial Association (VHIA) pursuant to s.248 of the Fair Work Act 2009 (the Act) for a single interest employer authorisation (Authorisation), in relation to a proposed enterprise agreement to be known as the Dental Therapists, Dental Hygienists and Oral Health Therapists’(Victorian Community Health Centres)(Single-interest Employer) Enterprise Agreement 2024-2026 (Proposed Agreement).

1. Section 248 of the Act provides as follows:

“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.”

1. The application sets out 13 employers (the Employers) intended to be covered by a new enterprise agreement in its Attachment A (s.248(2)(a)). The employers are community health centres and provide public health services to Victorians within their respective communities. The application also specifies the group of employees who will be covered by the new enterprise agreement (s.248(2)(b)). They are Dental Therapist, Dental Hygienist and Oral Health Therapist employees employed by the Employers (Employees).

1. 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 relevant registered organisation which represents the affected employees is The Health Services Union Victoria No. 3 Branch, which operates as the Victorian Allied Health Professionals Association (HSU). The HSU supports the application by the VHIA for a single interest employer authorisation, this was confirmed through the provision of correspondence from Craig MacGregor, Branch Secretary, dated 20 November 2024.

1. 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)  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.”

Consideration

1. The requirements for making an authorisation under s.249 of the 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 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.[1]

1. In deciding to make the Authorisation, I am satisfied that all the relevant requirements under ss.249 and 249A of the Act have been met. I briefly deal with each in turn.

Has each employer that will be covered by the agreement agreed to bargain together?

1. Having considered the material before me, I am satisfied, pursuant to ss.249(1)(b)(iii)-(iv) and s249(1A), that The Employers who will be covered by the proposed new enterprise agreement have agreed to bargain together. I am also satisfied that no person has been coerced, or threatened to coerce, any of those Employers, to bargain in this way. The Employers have provided the VHIA with an Authority to Act that authorises the VHIA to make this application. The Employers have issued employees with a notice of initiation of bargaining and rights to be represented that indicated the Proposed Agreement would be a single-interest employer enterprise agreement.

Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?

1. The VHIA submitted that it has been engaged in bargaining with the HSU from October 2024 and has had 2 bargaining meeting, and that all bargaining meetings have included the attendance of the HSU. I am satisfied, pursuant to s.249(1)(b)(i) of the Act, that at least some of the employees who will be covered by the Proposed Agreement are represented by an employee organisation, being the HSU.

Have the Parties had the opportunity to express their views?

1. Pursuant to s.249(1)(b)(ii) of the Act, I am satisfied that the Employers and

the bargaining representatives of the employees of the Employers who will be covered by the
Proposed Agreement have had an opportunity to express to the Commission their views (if any) on authorisation. The Employers have provided VHIA with an Authority to Act that specifically contemplates the application for a single-interest employer authorisation. The VHIA has consulted with the HSU, and they have provided consent to the making of this application (Attachment C to the Application).

Have the requirements of either ss.249(2) or 249(3) been met?

1. 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.

1. All the Employers have sites located in Victoria and are regulated by the Health Services Act 1988 (Vic). The VHIA has submitted that each Employer’s scope of business is in the provision of health and welfare services and the Employers (or their predecessors) have a history of bargaining together in respect of industrial instruments covering Dental Therapist, Dental Hygienist and Oral Health Therapist employees. The Employers and their employees have been covered by the same federal industrial instruments in the same or substantially the same terms since 2010.  The core terms and conditions of employment for the employees are substantially the same at each Employer. A single enterprise agreement across Victoria facilitates the efficient operation of the bargaining process and the movement of employees across the sector along with their personal leave and long service leave entitlements. The VHIA also submitted that it would not be contrary to the public interest to make the authorisation because approving the application would:

• maintain the status quo in relation to how bargaining in the community health sector in Victoria occurs and maintain common terms across the Employers for the employees;

• meet the objects of the Act (contained in section 3) – as the single interest employer authorisation will ensure that the relevant employees all receive the same additional benefits compared to those contained within the Modern Award. In addition, these benefits are provided regardless of whether the employee is employed within a small Community Health Centre or a large Community Health Centre which promotes equity and fairness across Community Health Centres;

• meet the objects of Part 2-4 of the Act (contained in section 171) – as the single interest employer authorisation will ensure that the bargaining process is as simple and fair as possible;

• ensure that the bargaining process is as efficient as possible; and

• ensure that certain entitlements are portable across Employers which will assist in the retention of employees in the community health system in Victoria.

1. Pursuant to ss.249(1)(b)(v), (3) and (3A) of the Act, I am satisfied that Employers are common interest employers and it would not be contrary to the public interest to make the authorisation.

Do the Applicant Employers have reasonably comparable operations and business activities?

1. 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.

1. Each Employer has the common goal of attracting and retaining employees and the common objective of providing health services to the State of Victoria, and to operate collaboratively to achieve that objective. Each employer is regulated by the Health Services Act 1988 (Vic) and are substantially funded by the State of Victoria, subject to same funding arrangements.

1. I am satisfied that the operation and business activities of each of the Employers are reasonably comparable with those of the other Employers that will be covered by the proposed agreement.

Other Matters

1. The Proposed Agreement will not cover employees in relation to general building and construction work.[2]

1. The findings made apply to all of the Employers and for the purposes of s.250(2) of the Act I am satisfied that each should be specified in the Authorisation.

1. The circumstances contemplated in ss.250(3) and (4) do not apply.

Conclusion

1. In accordance with s.249(1) of the Act, I must make a single interest employer authorisation in relation to the proposed enterprise agreement.

1. 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, subject to any extension pursuant to s.252 of the FW Act.

1. An Authorisation to this effect will be issued separately.[3]

DEPUTY PRESIDENT

[1] Section 249(1)(b)(iv) of the Act.

[2] Section 249A of the Act.

[3] PR782533

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