[2011] FWA 8376

[2011] FWA 8376

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.248 - Application for a single interest employer authorisation

Victorian Hospitals' Industrial Association
(B2011/4027)

COMMISSIONER JONES

MELBOURNE, 6 DECEMBER 2011

Summary: Ministerial declaration that two or more employers may bargain together - application to FWA for authorisation following declaration - restriction on FWA’s functions - preconditions to FWA making authorisation.

[1] On 30 November 2011, the Victorian Hospital Industrial Association (VHIA) applied to Fair Work Australia under s.248(1) of the Fair Work Act 2009 (the Act) for a single employer authorisation (following declaration by the Minister having been made under s.247 of the Act, the details of which are discussed below).

[2] The matter was heard on 2 December 2011, at the conclusion of which a decision was issued ex tempore. The following are reasons for decision.

[3] Section 248 of the Act provides:

248 Single interest employer authorisations

(1) Two or more employers may apply to FWA for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement.

Note: The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)).

(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.”

[4] VHIA made its application as the nominated representative of employers who will be covered by the proposed enterprise agreement. The employers that are seeking to bargain together are:

METROPOLITAN HOSPITAL/HEALTH SERVICES

Alfred Health

Austin Health

Eastern Health

Melbourne Health

Mercy Public Hospitals Incorporated

Peninsula Health

Southern Health

St Vincent’s Health

Royal Children’s Hospital

REGIONAL HOSPITALS/HEALTH SERVICES

Ballarat Health Services

Barwon Health

Beechworth Hospital (The)

Bendigo Healthcare Group Inc

Goulburn Valley Health

Latrobe Regional Hospital

Mildura Base Hospital

North East Health Wangaratta

South West Healthcare

Wodonga Regional Health Service

[5] The employees who will be covered by the proposed enterprise agreement specified in the application are employees of the employers listed in paragraph [3] above and employed in the following classifications.

Registered Psychiatric Nurses;

Psychiatric Enrolled Nurses;

Psychiatric Services Officers and other Non Direct Care employees; and

Allied Health Professionals employed solely or predominantly in the provision of Psychiatric services

[6] Section 249 of the Act relevantly provides:

249 When FWA must make a single interest employer authorisation

Single interest employer authorisation

(1) FWA 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) FWA is satisfied that:

(i) the employers that will be covered by the agreement have agreed to bargain together; and

(ii) no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and

(c) the requirements of either subsection (2) (which deals with franchisees) or (3) (which deals with employers that may bargain together for a proposed enterprise agreement) are met.

...

Employers that may bargain together for the agreement

(3) The requirements of this subsection are met if FWA is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.”

[7] On 7 October 2011, on behalf of the employers listed in paragraph [3] above, the VHIA sought a declaration under s.247 of the Act from the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (the Minister) that they may bargain together for an enterprise agreement.

[8] Section 247 provides:

247 Ministerial declaration that employers may bargain together for a proposed enterprise agreement

Application for declaration

(1) Two or more employers that will be covered by a proposed enterprise agreement may apply to the Minister for a declaration under subsection (3).

Note: Employers named in a declaration may apply for a single interest employer authorisation (see Subdivision B of this Division).

(2) The application must specify the employers (the relevant employers) that will be covered by the agreement.

Declaration by the Minister

(3) If an application is made under subsection (1), the Minister may declare, in writing, that the relevant employers may bargain together for the agreement.

(4) In deciding whether or not to make the declaration, the Minister must take into account the following matters:

(a) the history of bargaining of each of the relevant employers, including whether they have previously bargained together;

(b) the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;

(c) whether the relevant employers are governed by a common regulatory regime;

(d) whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;

(e) the extent to which the relevant employers operate collaboratively rather than competitively;

(f) whether the relevant employers are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory;

(g) any other matter the Minister considers relevant.

(5) If the Minister decides to make the declaration, the relevant employers must be specified in the declaration.

(6) A declaration under subsection (3) is not a legislative instrument.”

[9] On 8 November 2011, the Minister issued a declaration under subsection 247(3) of the Act (Ministerial Declaration), declaring that employers (as identified in paragraph [3] above) may bargain together for a single enterprise agreement.

[10] Having considered the application, the Ministerial Declaration, correspondence from the VHIA to the Minister dated 7 October 2011 and the submissions of the VHIA, Health and Community Services Union and the Australia Nursing Federation. I am satisfied that:

an application for a single interest authorisation has been made: s249(1)(a);

the employers that will be covered by the agreement have agreed to bargain together: s249(1)(b)(i);

no person coerced, or threatened to coerce, any of the employers to agree to bargain together: s.249(1)(b)(ii); and

all of the employers are specified in a declaration made under s.247 in relation to the agreement: s.249(3).

[11] Consequently, in accordance with s.249 of the Act, I will make a single interest employer authorisation. The authorisation will come into effect on 2 December 2011.

COMMISSIONER

Appearances:

Mr R. Corboy - Victorian Hospitals’ Industrial Association

Mr M. Irving of Counsel and Ms L. Svensden - Health and Community Services Union

Mr A. Prendergast - Australian Nursing Federation

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