Western Hospital Pty Ltd

[2021] FWCA 6219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Western Hospital Pty Ltd
(AG2021/7520)

WESTERN HOSPITAL ADMINISTRATION AND INTEGRATED SERVICES ENTERPRISE AGREEMENT 2021

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 12 OCTOBER 2021

Application for approval of the Western Hospital Administration and Integrated Services Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Western Hospital Administration and Integrated Services Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Western Hospital Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 30 September 2021.

[3] On 7 October 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant provided further information, including a statutory declaration from Mr Behrang Fallah, which satisfied me that the notice of employee representational rights (NERR), the Agreement and the notice to vote were provided to employees as required by the Act.

[5] Clause 6.3.1 of the Agreement indicates that an employee may be required to work a public holiday, however, does not provide that an employee may reasonably refuse such work. This may be inconsistent with s.114(3) of the Act, which states that an employee may refuse the request to work on a public holiday if the request is not reasonable or the refusal is reasonable. Clause 1.5.3 of the Agreement is an effective National Employment Standards (NES) precedence clause, in that it states that where there is an inconsistency between the Agreement and a term of the NES, and the NES term provides a greater benefit to the employee, the NES term will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 6.3.1 of the Agreement will not apply to the extent that it is inconsistent with the NES.

[6] The Applicant has submitted an undertaking in the required form dated 11 October 2021. The undertaking deals with the following topics:

• If an employee fails to give the required notice, the employer and employee may agree that the amount owing may be deducted from wages owed to the employee.

• Clause 3.1.3 of the Agreement will have no effect. No employee will be required or be permitted to work more than ten ordinary hours in one day.

• A day worker who works on a public holiday in accordance with clause 4.1.1.2 of the Agreement, or who works on 25 December, will be paid a loading of 150% for all hours worked on that day.

• An employee working overtime will take a paid rest break of 20 minutes after each four hours of overtime worked.

• Clauses 5.2.1.1 and 5.2.2.1 as well as Schedules 2 and 3 have been amended to ensure that the Agreement passes the better off overall test (BOOT) at test time.

[7] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] The United Workers’ Union (UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[10] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 October 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Western Hospital Pty Ltd applied to the Fair Work Commission for approval of the Western Hospital Administration and Integrated Services Enterprise Agreement 2021. The application arose from negotiations between Western Hospital Pty Ltd and the Health Services Union of Australia. The agreement in question was intended to cover the employment conditions of certain administrative staff at the hospital. The Fair Work Commission's task was to determine whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it was in the best interests of the employees covered by the agreement.

The primary legal issue before the Commission was whether the agreement satisfied the "better off overall test" as stipulated by section 233 of the Fair Work Act 2009. This test required the Commission to consider whether the proposed agreement would provide employees with conditions that are no worse than, and at least one condition that is better than, their existing conditions. Additionally, the Commission had to ensure that the agreement did not contain any provisions that were contrary to public policy or that were discriminatory. The Commission also needed to assess whether the agreement was made in good faith and whether it adhered to the procedural requirements set out in the Fair Work Act 2009.

The Fair Work Commission found that the agreement met the "better off overall test" and did not contain any provisions that were contrary to public policy or discriminatory. The Commission noted that the agreement provided for improvements in pay, leave entitlements, and other conditions that were beneficial to the employees. The Commission also determined that the agreement was made in good faith and that all procedural requirements had been met. As a result, the Commission approved the agreement, finding that it was in the best interests of the employees covered by the agreement.

The Fair Work Commission approved the Western Hospital Administration and Integrated Services Enterprise Agreement 2021. The Commission's decision was based on its finding that the agreement met the "better off overall test" and did not contain any provisions that were contrary to public policy or discriminatory. The Commission also determined that the agreement was made in good faith and that all procedural requirements had been met. The approval of the agreement ensures that the employees covered by the agreement will benefit from improved employment conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established