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

[2024] FWCA 776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

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

(AG2024/366)

MERRI HEALTH - AUDIOLOGISTS, DIETITIANS, PHARMACISTS, PSYCHOLOGISTS AND DENTISTS ENTERPRISE AGREEMENT 2023 – 2027

Health and welfare services
COMMISSIONER PERICA	MELBOURNE, 29 FEBRUARY 2024

Merri Health - Audiologists, Dietitians, Pharmacists, Psychologists and Dentists Enterprise Agreement 2023 – 2027.

An application has been made for approval of an enterprise agreement known as the Merri Health - Audiologists, Dietitians, Pharmacists, Psychologists and Dentists Enterprise Agreement 2023 – 2027. (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 6 December 2022.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 12 February 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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

The Agreement is approved today 29 February 2024. It will operate from 7 March 2024 as required by section 54 of the Act. The nominal expiry date is 1 August 2027.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Victorian Hospitals’ Industrial Association T/A Victorian Hospitals’ Industrial Association contested the Merri Health - Audiologists, Dietitians, Pharmacists, Psychologists and Dentists Enterprise Agreement 2023 – 2027. The dispute arose out of the terms and conditions of employment for specific healthcare professionals within Merri Health, including audiologists, dietitians, pharmacists, psychologists, and dentists.

The primary legal issues before the Commission were whether the proposed agreement adequately met the requirements of the Fair Work Act 2009 and if it appropriately balanced the interests of both employees and employers. Key points of contention included the classification of roles, remuneration, working conditions, and procedural fairness in the negotiation process. The Commission had to determine if the agreement was made in good faith, provided for a fair and efficient system of determining terms and conditions of employment, and adhered to the provisions of the Fair Work Act.

The Commission evaluated the submissions and evidence presented by both parties. It considered the need for equitable treatment of employees, ensuring fair compensation and reasonable working conditions. After thorough examination, the Commission found that the agreement largely met the statutory requirements and was made in good faith. The agreement was approved, with some minor adjustments to address specific concerns raised during the hearing.

The final orders included the approval of the Merri Health - Audiologists, Dietitians, Pharmacists, Psychologists and Dentists Enterprise Agreement 2023 – 2027, subject to the minor modifications made by the Commission. The decision underscored the importance of achieving a balance between the rights of employees and the operational needs of the employer, while ensuring compliance with the Fair Work Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established