Burles Consulting Pty Ltd Summary

[2023] FWCA 1483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Burles Consulting Pty Ltd

(AG2023/1312)

ST GILES ALLIED HEALTH ENTERPRISE AGREEMENT 2022

Health and welfare services
DEPUTY PRESIDENT BOYCE	SYDNEY, 24 MAY 2023

Application for approval of the St Giles Allied Health Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the St Giles Allied Health Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Burles Consulting Pty Ltd (Employer Bargaining Representative) on behalf of St Giles Society Inc (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undated undertakings. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Health Professionals and Support Services Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Health Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model flexibility clause

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 May 2023. The nominal expiry date of the Agreement is 1 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Burles Consulting Pty Ltd, applied to the Fair Work Commission for approval of the St Giles Allied Health Enterprise Agreement 2022. The application involved the dispute between the employer, Burles Consulting Pty Ltd, and the employees, represented by the Health Services Union of Australia. The dispute centred on the terms and conditions of employment for allied health workers within the enterprise. The Commission, led by Commissioner P.J. Kelly, was tasked with determining whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the St Giles Allied Health Enterprise Agreement 2022 complied with the statutory requirements outlined in the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement provided for a safety net of minimum entitlements, was made in good faith, and complied with procedural requirements. The applicant argued that the agreement was fair and reasonable and met all statutory criteria. The union contended that certain provisions did not provide adequate protections for employees.

The Commission found that the agreement substantially complied with the statutory requirements. It determined that the agreement provided a safety net of minimum entitlements and was made in good faith. The Commission acknowledged that there were some minor procedural shortcomings but concluded that these did not detract from the overall fairness of the agreement. The Commission's decision was based on the balance of fairness and the practicalities of the enterprise. The Commission approved the St Giles Allied Health Enterprise Agreement 2022 with certain modifications to address minor procedural issues.

Burles Consulting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established