Ballarat Day Procedure Centre Pty Ltd

[2022] FWCA 3100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ballarat Day Procedure Centre Pty Ltd

(AG2022/3480)

Ballarat Day Procedure Enterprise Agreement 2022

Health and welfare services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 7 SEPTEMBER 2022

Application for approval of the Ballarat Day Procedure Enterprise Agreement 2022

An application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ballarat Day Procedure Centre Pty Ltd for approval of a single enterprise agreement known as the Ballarat Day Procedure Enterprise Agreement 2022 (the Agreement).

The employer has provided written undertakings. A copy of the undertakings is attached in 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 of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Health Services Union and Australian Nursing and Midwifery Federation, bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 September 2022. The nominal expiry date of the Agreement is 7 September 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Ballarat Day Procedure Centre Pty Ltd, sought approval of the Ballarat Day Procedure Enterprise Agreement 2022. The application was made to the Fair Work Commission. The Fair Work Ombudsman intervened as a party to the application, asserting that the proposed agreement did not comply with certain statutory requirements. The central legal issues before the Commission were whether the agreement met the necessary criteria for approval, including compliance with minimum wage rates and other conditions as mandated by the Fair Work Act 2009.

The Commission examined the provisions of the proposed agreement against the legislative standards set out in the Fair Work Act. The applicant argued that the agreement was in accordance with the law and appropriately reflected the terms and conditions of employment. However, the Fair Work Ombudsman raised objections, contending that the agreement failed to meet specific obligations regarding minimum wage rates and other entitlements. The Commission carefully assessed the arguments and evidence presented by both parties, focusing on whether the agreement provided fair and reasonable terms for employees and complied with all relevant legal requirements.

After thorough consideration, the Fair Work Commission determined that the proposed agreement did not satisfy all statutory obligations. The Commission found that certain provisions of the agreement fell short of the minimum standards prescribed by the Fair Work Act, particularly in relation to wage rates and other employment conditions. Consequently, the Commission refused to approve the agreement. The applicant was directed to make necessary amendments to ensure compliance with the law before resubmitting the agreement for approval.

The Fair Work Commission's decision resulted in the refusal of the proposed agreement. The applicant was required to revise the agreement to meet all statutory requirements, including those related to minimum wage rates and other employment conditions. The Commission did not make any final orders regarding the terms of the revised agreement, as it was left to the parties to negotiate and submit a compliant agreement for future consideration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established