s.251 - Single interest employer authorisation

Parkville Youth And Mental Health And Wellbeing Service

Application to vary single interest employer authorisation B2024/1688 to add an employer - all parties in support or not opposed - variation appropriate and order made

• [1] Parkville Youth and Mental Health and Wellbeing Service (PYMHWS or Applicant) has applied to the Commission under s.251 of the Fair Work Act 2009 (Act) to vary a single interest employer authorisation (SIEA). The Authorisation[1] was issued by the Commission on 17 January 2025 under s.248 of the Act and included 19 employers who all carry on an enterprise for the provision of Public Mental Health Services and are represented by the Victorian Hospitals' Industrial Association (VHIA).

• [2] The application seeks to add Parkville Youth and Mental Health and Wellbeing Service (new employer) to the Authorisation under s.251(3) and (4).

• [3] The parties who are presently subject to the Authorisation are negotiating a multi- enterprise agreement (proposed new agreement) which would apply to all these employers. The VHIA is the person nominated by the employers to make applications under the Act in connection with the Authorisation.

• [4] The application provides that PYMHWS became a designated mental health service under the Mental Health Act 2014 (Vic) on 1 July 2025. Accordingly, pursuant to s.251(3)(a) of the Act, the application seeks a variation to add PYMHWS to the SIEA so they may be named as a respondent to the proposed new agreement.

• [5] The employees of the new employer are employed solely or predominantly in the provision of Public Mental Health Services. The bargaining representatives of the employees to the proposed new agreement, the Health and Community Services Union (HACSU) and the Australian Nursing and Midwifery Federation (ANMF) Victorian Branch, were provided with a copy of the application and support the variation of the Authorisation sought.

• [6] The VHIA provided the employers presently covered by the Authorisation with the opportunity to provide their position on the application to VHIA and/or directly to the Commission. No views were received in relation to this.

• [7] Having considered the application, today I issued an Order[2] varying the Authorisation as sought. My reasons for doing so are briefly set out below.

• [8] Sections 251(3), (4), (8) and s.251(A) of the Act provide as follows:

(3) The following may apply to the FWC for a variation of a single interest employer authorisation to add the name of an employer (the new employer) that is not specified in the authorisation to the authorisation:

(a) the new employer;

(b) a person who is a bargaining representative:

(i) for the proposed enterprise agreement to which the authorisation relates; and

(ii) of an employee of the new employer.

(4) The FWC must vary the authorisation to add the new employer's name if:

(a) an application for the variation has been made; and

(b) the FWC is satisfied that:

(i) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and

(ii) if the application was made by the new employer under paragraph (3)(a) - no person coerced, or threatened to coerce, the new employer to make the application; and

(iii) if the application was made by a bargaining representative under paragraph (3)(b) - the requirements of subsection (5) are met; and

(iv) the requirements of subsection 249(2) or (3) (which deal with franchisees and common interest employers) would continue to be met if the new employer's name were added; and

(v) if the requirements of subsection 249(3) would continue to be met if the new employer's name were added - the operations and business activities of the new employer are reasonably comparable with those of the employers specified in the authorisation.

Employers and employees that are already bargaining

(8) Despite subsection (4), the FWC may refuse to vary the authorisation if the FWC is satisfied that:

(a) the new employer is bargaining in good faith for a proposed enterprise agreement that will cover the new employer and the employees of the new employer that will be covered by the agreement, or substantially the same group of those employees; and

(b) the new employer and those employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the new employer and those employees, or substantially the same group of those employees; and

(c) on the day that the FWC will vary the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

(251A) Restriction on variation of single interest employer authorisation

Despite subsection 251(4), the FWC must not vary a single interest employer authorisation if, as a result of the variation, the proposed enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work."

• [9] I briefly confirm the basis of my satisfaction with the relevant requirements below.

• [10] PYMHWS is entitled to bring this application, and it has been made in accordance with the Act. The new employer is not presently specified in the Authorisation. This meets the requirements of s.251(3)(a) and s.251(4)(a) of the Act.

• [11] The existing employers and the bargaining representatives of the employees of those employers have had an opportunity to express their views to the Commission. This meets the requirements of s.251(4)(b)(i) of the Act.

• [12] There is no evidence that the new employer was coerced into making the application. This satisfies the requirements of s.251(4)(b)(ii).

• [13] Section 251(4)(b)(iii) does not apply as the application was not made by a bargaining representative under paragraph (3)(b).

• [14] The requirements in s.251(4)(b)(iv) also call up certain statutory requirements for the making of a SIEA in s.249 of the Act. The immediately relevant provisions are:

(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."

• [15] As to the existence of clearly identifiable common interests, the material before the Commission confirms that the new employer and the existing employers have these common interests and the common interest requirements would continue to be met if the new employer were added. The factors that support this finding include:
  • Geographical location - all of the Employers, including PYMHWS, have sites located in Victoria;
  • Regulatory regime - the majority of employers, including PYMHWS - are regulated by the Health Services Act 1988(Vic) and as designated mental health services are regulated by the Mental Health Act 2014 (Vic).
  • Nature of the enterprise to which the enterprise agreement related and the terms and conditions of employment in the enterprises:
    • - Each Employer's scope of business, including PYMHWS is in the provision of Mental Health and Welfare Services;
    • - The relevant Employers (or their predecessors), other than PYMHWS have a long-standing history of bargaining together in respect of industrial instruments covering Mental Health Employees. The Employers and their Employees have been covered by the same federal industrial awards and agreements in the same or substantially the same terms since at least 1992. The existing Employees were previously employed by Melbourne Health and subject to this arrangement.
    • - A single enterprise agreement across Victoria facilitates the efficient operation of the bargaining process and the movement of employees across the sector along with their personal leave and long service leave entitlements.

• [16] I am satisfied that these are clearly identifiable common interests that are relevant to whether the new employer should be subject to the Authorisation and bargaining collectively with the existing employers.

• [17] The Applicant submits it is not contrary to the public interest to make the authorisation

• Maintain the status quo in relation to how bargaining in the public health sector in Victoria predominantly occurs and maintain common terms across the Employers for the employees;
• Meet the objects of the Act (contained in section 3) - as the SIE will ensure that the relevant employees all receive the same additional benefits compared to those contained within the Modern Award. In addition, these benefits are provided regardless of whether the employee is employed within a small Health Service or a large Health Service which promotes equity and fairness across the Health Services;
• Meet the objects of Part 2-4 of the Act (contained in section 171) - as the SIEA will ensure that the bargaining process is as simple and fair as possible;
• Ensure that the bargaining process is as efficient as possible; and
• Ensure that certain entitlements are portable across Employers, including PYMHWS, which will assist in the retention of employees in the health system in Victoria.

• [18] Having considered these submissions, I am satisfied that it is not contrary to the public interest for the variation to the Authorisation to be made. Adding the new employer to the Authorisation is consistent with the objects of the Act, and nothing has been suggested or is apparent that would make the proposed variation contrary to the public interest. This meets the requirements of s.251(4)(b)(iv).

• [19] The requirements of s.249(2) are not applicable to the new employer.[3]

• [20] I am also satisfied that the operations and business activities of the new employer are reasonably comparable with the existing employers. The applicant submits that:

• PYMHWS Employees were previously employed by Melbourne Health to undertake their existing duties.
• PYMHWS therefore delivers mental health services to the Victorian community, equivalent to the other Employers that will be covered by the Proposed Agreement
• PYMHWS has the common goal of attracting and retaining employees, like the other Employers that will be covered by the Proposed Agreement.
• PYMHWS has the same objective to provide health services to people in the State of Victoria and operate collaboratively with the other Employers that will be covered by the Proposed Agreement to meet that objective
• PYMHWS is substantially funded by the State of Victoria and are therefore subject to the same funding arrangements, like the other Employers that will be covered by the Proposed Agreement; and
• PYMHWS is regulated by the Health Services Act 1998 (Vic), like the other Employers that will be covered by the Proposed Agreement.

• [21] This meets the requirements of s.251(4)(b)(v) of the Act.

• [22] Accordingly, the requirements of s251(4) are satisfied.

• [23] Considering s.251(8), PYMHWS was established on 1 July 2025 and has not bargained to conclusion any enterprise agreement to date. As such, it does not have a history of effectively bargaining in relation to one or more enterprise agreements. Bargaining for the Proposed Agreement commenced in July 2024. Bargaining has now been underway for greater than 9 months. Therefore, its apparent the circumstances contemplated in s.251(8) do not exist.

• [24] The addition of the new employer to the Authorisation would not result in the proposed enterprise covering any employees in general building or construction work. This meets the requirements of s.251A of the Act.

• [25] Accordingly, I am satisfied that all of the requirements for making a variation to add the new employer are met and the Commission is obliged by the Act to grant the application.

• [26] Being satisfied that all of the requirements for making the variation sought to the Authorisation have been met, an order[4] confirming the variation, is being issued by the Commission in conjunction with this decision.

• [27] The existing employers are set out in the Authorisation. The order varies the Authorisation to confirm the different coverage of the Authorisation now determined by the Commission.

[1] PR783191.

[2] PR792250.

[3] Section 249(2) of the Act, which is referenced in s.251(4)(b)(iv), applies to franchise operators and is not relevant in this matter.

[4] PR792250.

Printed by authority of the Commonwealth Government Printer