Albury Wodonga Health and Others [2023] FWC 3099

1 Fair Work Act 2009 s.248 - Application for a single interest employer authorisation Albury Wodonga Health and Others (B2023/1088) DEPUTY PRESIDENT WRIGHT SYDNEY, 24 NOVEMBER 2023 Application for a single interest employer authorisation Introduction [1] This is an application for a single interest employer authorisation under s.248 of the Fair Work Act 2009 (Cth) (the Act). [2] The authorisation sought is in relation to each of the following employers (the Employers) and their employees who are employed as General Dentists: a) Albury Wodonga Health b) Alfred Health c) Bairnsdale Regional Health Service d) Barwon Health e) Bass Coast Health f) Bendigo Health g) Boort District Health h) Central Gippsland Health Service i) Central Highlands Rural Health j) Dental Health Services Victoria k) East Grampians Health Service l) Echuca Regional Health [2023] FWC 3099 DECISION -- 1 of 6 -- [2023] FWC 3099 2 m) Grampians Health n) Goulburn Valley Health o) Maryborough District Health Service p) Monash Health q) NCN Health r) Northeast Health Wangaratta s) Orbost Regional Health t) Peninsula Health u) Seymour Health v) South West Healthcare w) Swan Hill District Health x) West Wimmera Health Service y) Western Health [3] The Employers are public health services governed by the Health Services Act 1989 (Vic) and are publicly funded by the State of Victoria. They are subject to the same funding arrangements, which impact directly on their bargaining position. The Employers currently have a common objective to provide public health services within the State of Victoria and operate collaboratively to meet the objective. [4] The Employers provide a range of public health services, including General Dentistry in Victoria. [5] The Employers have a long-standing history of bargaining together in respect of industrial instruments covering their employees who are employed as General Dentists, having been covered by the same federal industrial awards and agreements in the same or substantially the same terms since at least 2002. [6] Currently, the Employers are covered by one of two enterprise agreements (2018 Agreements); the Victorian Public Health Sector (General Dentists’) Multi Enterprise Agreement 2018-2022 and the Victorian Public Health Sector (General Dentists’) Multi Enterprise Agreement 2018-2022 (No 2). [7] The 2018 Agreements contain substantially the same terms and conditions, however they cover different employers. They both commenced operation on 25 April 2019 and reached their nominal expiry date on 1 July 2022 -- 2 of 6 -- [2023] FWC 3099 3 [8] The Employers have agreed to bargain together for an agreement which will replace the 2018 Agreements. [9] In May 2022, the Victorian Hospitals’ Industrial Association (VHIA) received authority to act on behalf of the Employers as a bargaining representative in accordance with s 176(1)(d) of the Act. [10] On 8 August 2022, VHIA on behalf of the Employers, applied to the Hon. Tony Burke, the Minister for Employment and Workplace Relations, pursuant to s.247 of the Act for a Declaration that the Employers be permitted to bargain together for the Proposed Agreement. An amended application was made on 12 August 2022. On 7 September 2022 the Minister made a written Declaration that the VHIA Employers may bargain together for the proposed agreement. [11] The application for a single interest employer authorisation was originally made by the VHIA on 12 October 2023. [12] The matter was listed for directions on 6 November 2023. VHIA, The Australian Dentists Association Victorian Branch (ADAVB) and Professionals Australia appeared at the directions hearing. ADAVB is the professional association representing the interests of General Dentists in Victoria. The ADAVB was represented by Professionals Australia. ADAVB consents to the application. [13] I made directions for the filing and serving of evidence and submissions. On 17 November 2023, VHIA filed evidence and submissions and an amended application was made in the name of the Employers. [14] The matter was listed for hearing on 22 November 2023. With the consent of the parties, during the hearing I granted leave for the application to be amended in the terms sought pursuant to s.586 of the Act. Relevant legislation [15] The Declaration by the Minister was made prior to 6 June 2023 which is the commencement date of the bargaining and other reforms to the Act. As such, the Commission is required by Schedule 1, item 75 of the Act to apply the terms of the Act that existed prior to 6 June 2023. [16] Prior to 6 June 2023, ss. 248, 249 and 250 of the Act provided: 248 Single interest employer authorisations (1) Two or more employers may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement. -- 3 of 6 -- [2023] FWC 3099 4 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. 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) 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. Franchisees (2) The requirements of this subsection are met if the FWC is satisfied that 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. Employers that may bargain together for the agreement (3) The requirements of this subsection are met if the FWC is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement. 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) the day on which the enterprise agreement to which the authorisation relates is made; -- 4 of 6 -- [2023] FWC 3099 5 (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. 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 employers that may bargain together for a proposed enterprise agreement) 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. Consideration [17] The Commission is required by s.249 of the Act to make a single interest employer authorisation if an application for the authorisation has been made under s. 248 and it is satisfied that: • the employers that will be covered by the agreement have agreed to bargain together; • no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and • the requirements of either subsection (2) or (3) are met. [18] The application meets the requirements of s.248 as it has been submitted by two or more employers and specifies the employers and employees who will be covered by the agreement. Further it indicates that VHIA is nominated by the Employers to make applications under this Act if the authorisation is made. [19] The evidence establishes that the employers that will be covered by the agreement have agreed to bargain together; and no person coerced, or threatened to coerce, any of the employers to agree to bargain together. The Declaration by the Minister has been provided to the Commission and I note that it refers to all of the employers who are applicants in the matter. I am therefore satisfied that each of the requirements of s.249(1) and (3) are met and that I am required to make a single interest employer authorisation as sought in the application. -- 5 of 6 -- [2023] FWC 3099 6 [20] An authorisation meeting the requirements of s.250 of the Act has been separately issued in PR768646. [21] In accordance with s.249(4) of the Act, the authorisation comes into operation on 24 November 2023. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR768645> -- 6 of 6 --