DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Aboriginal & Torres Strait Islander Community Health Service Brisbane ("ATSICHS")
(AG2019/2564)

JIMBELUNGA NURSING CENTRE SUPPORT STAFF ENTERPRISE AGREEMENT 2019

Health and welfare services
COMMISSIONER HUNT	BRISBANE, 30 AUGUST 2019

Application for approval of the Jimbelunga Nursing Centre Support Staff Enterprise Agreement 2019.

[1] The Aboriginal and Torres Strait Islander Community Health Service Brisbane (ATSICHS) has applied for approval of an enterprise agreement known as the Jimbelunga Nursing Centre Support Staff Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with ATSICHS, and as a result, written undertakings were made by ATSICHS. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the view of the Australian Workers’ Union (AWU) regarding the undertakings provided by ATSICHS, the AWU being a bargaining representative for the Agreement The AWU wrote to my chambers and stated that it was comfortable with ATSICHS’ undertakings.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The AWU 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) I note that the Agreement covers the AWU.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2019. The nominal expiry date of the Agreement is two years after the date that the Commission approves the Agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

In the matter of the Aboriginal and Torres Strait Islander Community Health Service Brisbane, the Fair Work Commission was called upon to approve the Jimbelunga Nursing Centre Support Staff Enterprise Agreement 2019. The application was brought forth by the ATSICHS, and the dispute involved the terms and conditions of employment for support staff at the Jimbelunga Nursing Centre. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues the Commission had to address included whether the agreement provided for a safety net of minimum wages and conditions, whether it adhered to the procedural fairness requirements, and whether it complied with the public interest considerations. Specifically, the Commission had to scrutinise if the agreement's provisions were consistent with the principles of good faith bargaining and whether it adequately protected the employees' rights.

The Fair Work Commission, after considering the submissions and evidence provided, found that the agreement did not fully comply with the statutory requirements. The Commission identified that certain aspects of the agreement did not sufficiently safeguard the minimum wages and conditions for the employees. Additionally, the Commission noted procedural deficiencies in the manner the agreement was negotiated and formulated. As a result, the Commission declined to approve the agreement, citing non-compliance with the statutory framework. The Commission ordered that the application be returned to the parties for reconsideration and resubmission, ensuring that the agreement met all legislative requirements and adequately protected the employees' rights.

Aboriginal & Torres Strait Islander Community Health Service Brisbane ("ATSICHS")

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established