Victorian Hospitals Industrial Association v Association of Professional Engineers, Scientists and Managers, Australia

[2024] FWC 776

[2024] FWC 776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.248 - Application for a single interest employer authorisation

Victorian Hospitals Industrial Association
v

Association of Professional Engineers, Scientists and Managers, Australia

(B2024/161)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 2 APRIL 2024

Proposed Biomedical Engineers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2024-2028

1. The application

1. 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), covering 14 health care employers (Employers). The authorisation is sought in respect of bargaining for an enterprise agreement to cover Biomedical Engineers employed by the Employers. The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) is the bargaining representative of the Biomedical Engineers and is supporting the application. This has been confirmed through the provision of correspondence from Scott Crawford, Director, dated 26 February 2024 on behalf of APESMA.

1. On 19 March 2024, I issued Directions to the parties, directing the VHIA to provide a copy of the Directions to each of the Employers.[1] I further directed any Employer who wished to express a view on the application, to file written submissions with the Commission. No concerns or other views were subsequently communicated, beyond those already confirmed in the application itself.

1. In that light, I have now determined this application based upon the submissions and evidence before the Commission.

1. A Full Bench of the Commission relatively recently dealt[2] 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.[3] I have adopted that approach.

1. For reasons set out herein, I have granted the application and made the authorisation in the terms sought.

1. The statutory context

1. 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.”

1. The FW Act has previously provided for single interest authorisations;[4] however the basis and operation of the authorisations was significantly amended by the SJBP Act.

1. 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.”

1. The Explanatory Memorandum to the SJBP Act stated that 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.”[5]

… …

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.”[6]

1. Should the authorisation be made?

1. 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 respondents. 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. [7]

1. 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?

1. An application was made by the VHIA on 27 February 2024. The VHIA is acting on behalf of the Employers who will be covered by the proposed agreement. The application specifies the required matters, including the person nominated by the employers to make applications.[8] 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?

1. A significant number of employees of each of the Employers are members of the APESMA. APESMA is an employee organisation under the terms of the FW Act. Accordingly, I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation.[9]

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

1. It is apparent that each Employer has consented to the application and agreed to bargain together. I am 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?

1. I am satisfied that the Employers and the bargaining representatives have had the opportunity to express their views on the proposed authorisation.[10]

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.

1. I am satisfied that the Employers have clearly identifiable common interests.[11] All the employers have sites in Victoria. Each Employer often treat the same patients for different types of treatment. The majority of the Employers are regulated by the Health Services Act 1988 (Vic). The scope of each Employer’s business falls within health and welfare services. The Employers have a long-standing history of bargaining together in relation to the relevant employees. The core terms and conditions of employment for the relevant employees are the same at each Employer.

1. I am satisfied that it is not contrary to the public interest to make the authorisation.[12] VHIA submitted that the application falls within the object of ss.3 and 171 of the FW Act. The Authorisation would ensure that certain entitlements are portable across employers which will assist in the retention of workers in the public health system.

1. Accordingly, I am satisfied that the requirements under s.249(3) of the FW Act have also been met.

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 Employers are reasonably comparable with those of the other employers that will be covered by the Agreement. The material before the Commission supports the proposition that this is so.

General building and construction work

1. The Agreement will not cover employees in relation to general building and construction work.[13]

Other matters

1. The application specifies each of the matters required by s.250(1) of the FW Act.

1. 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.

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

1. Conclusions

1. 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.

1. The authorisation has been issued separately in PR772756.

1. 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] In light of the requirements of s.249(1)(b)(ii) of the FW Act.

[2] Independent Education Union of Australia v Catholic Education Western Australia Limited & Ors[2024] FWC 482.

[3] The Full Bench’s approach was followed in VHIA v ANMF and HSU [2024] FWC 482.

[4] Sections.247 – 252 of the FW Act as it stood prior to the operation of the SJBP Act.

[5] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1006].

[6] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1066].

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

[8] Section 248(2)(c) of the FW Act.

[9] Section 249(1)(b)(i) of the FW Act.

[10] Section 249(1)(b)(ii) of the FW Act.

[11] Section 249(3)(a).

[12] Section 249(3)(b).

[13] Section 249A of the FW Act.

Printed by authority of the Commonwealth Government Printer

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