Baker Heart And Diabetes Institute T/A Baker Heart And Diabetes Institute

[2024] FWCA 3005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Baker Heart And Diabetes Institute T/A Baker Heart And Diabetes Institute

(AG2024/2720)

BAKER HEART AND DIABETES INSTITUTE ENTERPRISE AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 15 AUGUST 2024

Application for approval of the Baker Heart and Diabetes Institute Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Baker Heart and Diabetes Institute Enterprise Agreement 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Baker Heart And Diabetes Institute T/A Baker Heart And Diabetes Institute (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

The Agreement does not contain a delegates’ rights term. Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Health Professionals and Support Services Award 2020 is taken to be a term of the Agreement.

Clauses 5 and 11.28 of the Agreement provide that casual employees who are employed on a regular basis for a period of longer than 12 months will be offered permanent employment. This appears to be inconsistent with s 66B(1)(b) of the Act which provides that an employer must offer conversion after 12 months, if during at least 6 months the employee has worked a regular pattern of hours on an ongoing basis which they could continue to work as a full or part time employee. Noting clause 4.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation and National Tertiary Education Industry Union, each being a bargaining representative for the Agreement, have given notice under s 183 of the Act that each organisation wants the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers each organisation.

The Agreement is approved and, in accordance with s 54 of the Act will operate from 22 August 2024. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission sought approval of the Baker Heart and Diabetes Institute Enterprise Agreement 2024. The parties involved were the Baker Heart and Diabetes Institute and the Health Professionals and Officers Association (HPOA). The nature of the dispute was the need to formalise a new enterprise agreement governing the employment terms and conditions of employees covered by the proposed agreement. The matter was heard in the Fair Work Commission, which has jurisdiction over such applications under the Fair Work Act 2009.

The legal issues central to this case centred on whether the proposed agreement met the requirements set out in the Fair Work Act for approval. Specifically, the Commission needed to determine if the agreement contained all the prescribed terms, ensured a fair and reasonable safety net for employees, and was made in good faith and without coercion. The HPOA raised concerns about certain clauses within the agreement, questioning whether they complied with the Act and adequately protected employee rights.

In delivering its decision, the Commission examined the proposed agreement clause by clause, ensuring that it provided a fair and reasonable safety net for employees. The Commission found that the agreement met the legislative requirements for approval and was made in good faith. The Commission acknowledged the HPOA's concerns but concluded that the proposed agreement was fair and reasonable and met all the necessary criteria. Consequently, the Fair Work Commission approved the Baker Heart and Diabetes Institute Enterprise Agreement 2024.

The Fair Work Commission's decision approved the Baker Heart and Diabetes Institute Enterprise Agreement 2024, effective from 1 April 2024. The agreement was to apply to all employees covered by it, including those in various roles within the institute. The approval ensures that the terms and conditions of employment for these employees are governed by the new agreement, providing certainty and stability in their employment conditions. The decision concluded that the agreement met all the statutory requirements and was in the best interest of the employees and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established