Banksia Palliative Care Service Incorporated T/A Banksia Palliative Care Summary

[2023] FWCA 1650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Banksia Palliative Care Service Incorporated T/A Banksia Palliative Care

(AG2023/1485)

BANKSIA PALLIATIVE CARE SERVICE ALLIED HEALTH PROFESSIONALS AGREEMENT 2022

Health and welfare services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 6 JUNE 2023

Application for approval of the Banksia Palliative Care Service Allied Health Professionals Agreement 2022

An application has been made for approval of an enterprise agreement known as the Banksia Palliative Care Service Allied Health Professionals Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Banksia Palliative Care Service Incorporated T/A Banksia Palliative Care (Employer). The Agreement is a single-enterprise agreement.

The notification time for the Agreement and the date the Agreement was made precede 6 June 2023. Accordingly, the legislative changes to the Act which commenced on 6 June 2023 do not apply to this Agreement.[1]

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, 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 organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 13 June 2023. The nominal expiry date of the Agreement is 6 June 2026.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, Division 11 of Part 26 of the Amending Act provides that Part 2‑4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023. Further, Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

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CaseChat Overview and Summary

In the case of Banksia Palliative Care Service Incorporated T/A Banksia Palliative Care, the applicants sought approval for a proposed agreement governing allied health professionals. The dispute was heard in the Fair Work Commission. The key legal issues involved assessing whether the proposed agreement met the criteria for approval under the Fair Work Act 2009, including whether it provided for a fair and efficient workplace. The Commission considered whether the agreement provided appropriate safeguards for employees, ensured procedural fairness, and complied with other relevant legislative requirements.

The Commission evaluated the agreement based on its alignment with the Fair Work Act's objectives, including ensuring fair and efficient workplace relations. The applicants argued that the agreement was necessary to manage the unique needs of their palliative care service and provided appropriate protections for both employees and employers. The Commission scrutinised the agreement's provisions, focusing on the procedural fairness mechanisms, dispute resolution processes, and the balance of rights and obligations between the parties. It was also necessary to consider whether the agreement provided for a fair and efficient workplace, taking into account the specific context of palliative care services.

After careful consideration, the Commission found that the proposed agreement was consistent with the Fair Work Act's objectives. The agreement provided adequate safeguards for employees, ensuring procedural fairness and balancing the rights and responsibilities of both parties. The Commission was satisfied that the agreement was necessary to manage the unique operational requirements of the palliative care service. Consequently, the Commission approved the Banksia Palliative Care Service Allied Health Professionals Agreement 2022.

Banksia Palliative Care Service Incorporated T/A Banksia Palliative Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established