Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania
[2024] FWCA 846
•7 MARCH 2024
| [2024] FWCA 846 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania
(AG2023/5446)
CALVARY HEALTH CARE – TASMANIA PRIVATE HOSPITALS – NURSES AND MIDWIVES ENTERPRISE AGREEMENT 2022
| Health and welfare services | |
| COMMISSIONER YILMAZ | MELBOURNE, 7 MARCH 2024 |
Application for approval of the Calvary Health Care – Tasmania Private Hospitals – Nurses and Midwives Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Calvary Health Care – Tasmania Private Hospitals – Nurses and Midwives Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania (the Applicant). The Agreement is a single enterprise agreement.
The Australian Nursing and Midwifery Federation Tasmanian Branch (ANMF) and Health Services Union, Tasmania Branch T/A Health and Community Services Union (HACSU) are union bargaining representatives. In the Form F18A the HACSU advised the Commission that they do not support approval of the Agreement and contend that the Agreement contravenes the National Employment Standards (NES) and has significant less beneficial terms. Despite correspondence between the parties and a conciliation conference on 8 February 2024, the HACSU pressed its objections and the ANMF supported the submissions made by the HACSU. Parties were required to file written submissions and this decision is made on the papers.
The objections raised by the HACSU and supported by the ANMF concern the following clauses in the Agreement:
· Clause 37(l) - the employer’s ability to direct an employee to take annual leave;
· Clause 37(a)(ii)(1) – shift workers additional leave entitlements; and
· Various clauses that are less beneficial in terms of the better off overall test.
Clause 37(I) - the employer’s ability to direct an employee to take annual leave
The HACSU objects to the proposed clause contending that it is:
· Inconsistent with s.93(3) of the Act on the basis that s.93(3) only allows an enterprise agreement to include a term requiring an employee to take annual leave “only if the requirement is reasonable.”
· Inconsistent with the Explanatory Memorandum[1] which discussed relevant considerations in assessing reasonableness.
· Despite the Applicant relying on custom and practice and even though the clause is unchanged from the current agreement, the Applicant’s custom to reach agreement with employees is more akin to s.88 of the NES rather than utilisation of the mechanism contained in clause 37(I).
· The drafting of the clause is too broad by allowing a shutdown over a 6 week period.
· The clause permits an “unfettered right” to provide 1 week notice in “unforeseen and pressing circumstances” and avoids consultation and redeployment requirements.
· Section 55 of the Act prohibits an enterprise agreement from excluding the full benefit of a NES.
· The clause is contrary to Parliament’s intention to allow for shutdown periods. The clause allows for reduced rosters, poorly defines the shutdown period and is contrary to s.93(3) by allowing for partial shutdown which is inconsistent with the Act.
· The clause is less beneficial than the Nurses Award 2020 as shutdown provisions in the Award only apply to medical practices and not hospitals.[2]
The Applicant contends that s.93(3) contemplates that there may be circumstances prescribed in an enterprise agreement where an employee may be required to take periods of annual leave, subject to the requirement being reasonable. It submits that in assessing reasonableness, the Explanatory Memorandum provides a non-exhaustive list of relevant considerations. The Applicant relies on the principles contained in the Full Bench 4 Yearly Review of Modern Awards – Plain Language – Shutdown Provisions,[3] and submits that its Agreement clause addresses the circumstances of the enterprise which is consistent with the principles. Not only does the Applicant contend that the clause meets the requirements of s.93(3) of the Act, but the clause also takes into consideration the “prevailing circumstances of the Applicant and its employees, the long standing and accepted practices in the workplace, provides for the necessary limitations and safeguards regarding direction to take leave and therefore the provisions of the clause are reasonable.”[4]
The clause in dispute is the following:
‘37. ANNUAL LEAVE
(l) Annual leave during close down periods
(i)It is noted that the last week of December and the month of January are times of less activity for the Employer, thereby resulting in a shut-down or partial shutdown, of certain areas and a significant curtailment of services in other areas at the Employer's hospitals.
(ii)Management will consult with staff a minimum of 8 weeks beforehand concerning changes to rosters and redeployment options (as set out at subclause (iii)) or the use of leave, over the period(s) set out at (i) above, bearing in mind the operational requirements of the hospitals.
(iii)Where there are no redeployment options, management reserves the right to direct employees to utilise up to two weeks (up to 3 weeks in the case of St James ward only) of their accrued leave entitlement over the period(s) set out at (i) of this clause, provided that such direction is reasonable.
(iv)Where an Employee does not have sufficient accrued annual leave for these period(s), the Employee may be required to take annual leave in advance where such requirement is reasonable. Alternatively, Employees may elect to take leave without pay for all or part of the shut-down period(s). Additionally, employees may utilise banked time in lieu of overtime and accrued days off for all or part of the shutdown period(s).
(v)Notwithstanding the provisions at Clause 37(d), the provisions set out for the Annual leave during close down periods provision will apply. Nothing in this clause prevents an Employee from being on call during the close-down period(s) where mutually agreed between the Employer and the Employee.
(vi)Notwithstanding the provisions set out at subclause (i) and (ii) above, in unforeseen and pressing circumstances, periods of less activity for the Employer may arise --resulting in shutdowns or partial shutdowns. The minimum 8 week consultation period set out at subclause (ii) will be reduced to one week for shutdowns (or partial shutdowns) which are as a result of circumstances beyond the Employer's control, including but not limited to Government health directives or other state of emergency directives.’
The clause concerns the taking of annual leave during close down periods. In particular the clause identifies the last week of December and the month of January to be shut down or partially shut down for operational reasons in certain areas of the hospital or due to the curtailment of services. Subclause (ii) provides a minimum consultation period of 8 weeks before any change to rosters, redeployment, or the use of leave can apply. Subclause (iii) provides the right to direct employees to take accrued (paid) leave of 2 weeks (or 3 weeks in St James Ward only) over the shut down period provided the direction is reasonable and there are no redeployment options. Subclause (iv) concerns alternative options where an employee does not have sufficient accrued leave such as leave in advance, banked time in lieu of overtime, accrued days off and leave without pay. Subclause (vi) provides an exemption to the 8 week consultation period where shutdowns or partial shutdowns with one week notice due to circumstances beyond the employer’s control. I observe that the contested clause is unaltered from the clause in place in the current agreement.
The NES are minimum standards of employment[5] and provide a safety net that underpins the clauses of enterprise agreements.
Section 55 of the Act describes the interaction between the NES, modern awards and enterprise agreements. It is clear that an enterprise agreement must not exclude the NES or any provision of the NES.[6] An enterprise agreement may include terms that are ancillary, incidental to the operation of the entitlement of an employee under the NES or supplement the NES.[7] Terms of an agreement may also contain the same terms as the NES[8] and any terms that contravene s.55 have no effect.[9]
Section 61 in Part 2-2 which identifies the national employment standards and makes clear that the standards apply to all employees and that they “cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).”
Division 6 concerns standards relating to annual leave. Section 93 of Division 6 provides that an enterprise agreement may include terms relating to cashing out and taking annual leave. Section 93(3) allows an enterprise agreement to “include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable. Further an “enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.”[10] Clause 37(l) concerns an employer’s ability to direct an employee to take paid annual leave in circumstances requiring shut down or partial shutdown. Therefore ss.93(3) and (4) are relevant to the operation of clause 37(l), notably that the requirements directing the taking of leave must be reasonable.
I further observe that the Agreement at clause 6 contains a NES precedence clause. This clause satisfactorily provides that where the NES in the Act is more favourable to the Agreement term regarding matters under the NES, then the NES prevails in respect to those conditions and the Agreement term has no effect.
In the 4 Yearly Review of Modern Awards – Plain language- Shutdown provisions[11](4 yearly review) a Full Bench was constituted to deal with matters in respect to shutdown terms. In consideration of the legislative framework the Bench discussed both s.93(3) of the Act and the guidance regarding the intention of s.93(3) of the Act as provided in the Explanatory Memorandum to the Fair Work Bill 2008 when determining if a requirement is “reasonable.” The 4 yearly review’s primary focus was on a model term for modern awards however, some of the observations from the proceedings are relevant and helpful in this matter.
While the historical review of award clauses identified key characteristics in award terms, it was observed that the terms of a shutdown clause varied depending on the patterns of work, production and practice in industries including the safeguards that address the circumstances allowing for shutdown, periods of shutdown and treatment of annual leave entitlements. The Bench expressed the preference for a model clause to be adapted in individual awards to incorporate existing prescriptions but did not propose to regulate shutdowns other than determining that shutdowns must be temporary and directions must be reasonable to ensure the clause cannot be abused.[12] Clearly the Bench contemplated that shutdowns may encompass all or part of an operation for a particular period(s). The Full Bench in the December decision[13] determined it was not persuaded to depart from its provisional conclusions in the August decision.
Of further relevance to this matter is the reference to the Explanatory Memorandum; the Full Bench observed that shutdown provisions are often found in annual leave clauses and thus the terms may be considered “incidental to or necessary for the practical operation of terms concerning the circumstances in which annual leave may be taken or may be required to be taken (…operating in conjunction with s.93(3)….). It may be noted in this connection that the Explanatory Memorandum for the Fair Work Bill 2008 contemplated that an award might deal with annual shutdowns as an incident of a provision concerned with the taking of annual leave made pursuant to s.93(3).”[14] Section 93(3) also applies to enterprise agreements.
The HACSU makes two points in relation to the shutdown provisions; first that the 6 week period is too broad and secondly that the clause is contrary to Parliament’s intention to allow for shutdown periods. The HACSU submits that the clause allows for reduced rosters, a poorly defined shutdown period and the clause is contrary to s.93(3) by allowing for partial shutdown.
The first observation to make is that the Act does not deal with shutdowns. Section 93(3) allows terms in an enterprise agreement requiring an employee, or allowing for an employee, to be required to take annual leave in particular circumstances, “but only if the requirement is reasonable”. The Explanatory Memorandum clearly contemplates shutdowns as a situation where the employee may be required to take leave. However, for the purpose of s.93(3) there are additional considerations to assess reasonableness of a direction to take leave as were contemplated by the list in the Explanatory Memorandum. The reference to shutdown over the Christmas/ New Year period in the Explanatory Memorandum[15] is neither a prescriptive description of shutdown, nor intended to define a reasonable shutdown period or prescribe that s.93(3) concerns shutdown. To be clear, section 93(3) concerns the direction to an employee to take paid annual leave. I do not agree with the HACSU submissions that the Explanatory Memorandum or Parliament’s intention is to limit the prescription of closedown circumstances as provided by the example and relied upon as the basis for objection to the proposed clause.
The Full Bench in the 4 Yearly Review determined that notification of a shutdown without any other considerations does not satisfy the criteria of reasonableness in s.93(3).[16] The Bench considered the Explanatory Memorandum in its deliberations and did not find that the reference to closedowns requires limited circumstances. Reference to closedown and reducing levels of annual leave in paragraph 381 are just examples. Paragraph 382 provides guidance in assessing reasonableness; in this paragraph there are no prescriptive conditions- the list contains “relevant considerations.” The full reference to paragraphs 381 and 382 of the Fair Work Bill 2008 Explanatory Memorandum which puts into context application of s.93(3) follows:
‘381. Subclause 93(3) permits terms to be included in an award or agreement that require an employee, or that enable an employer to require or direct an employee, to take paid annual leave in particular circumstances, but only if the requirement is reasonable. This may include the employer requiring an employee to take a period of annual leave to reduce the employee’s excessive level of accrual or if the employer decides to shut down the workplace over the Christmas/New Year period.
382. In assessing the reasonableness of a requirement or direction under this subclause it is envisaged that the following are all relevant considerations:
·the needs of both the employee and the employer’s business;
·any agreed arrangement with the employee;
·the custom and practice in the business;
·the timing of the requirement or direction to take leave; and
·the reasonableness of the period of notice given to the employee to take leave.’
The Agreement term in relation to shutdown refers to considerations to assess reasonableness, such as the minimum 8 week consultation period, consideration of redeployment, limitation to the period that an employee may be directed to take accrued leave, use of accrued days off or time off in lieu of overtime, unpaid time off work, leave in advance and the maximum period of 2 weeks of annual leave (3 weeks in St James Ward). During proceedings, the Applicant described the custom and practice to address reasonableness and no evidence was led that there have been any disputes or concerns with its operation. The reasons for shutdown or partial shutdown concerns availability of medical practitioners and demand from patients over the period that is prescribed in the Agreement.
There are few decisions that contemplate the test of reasonableness in situations where the employer determines to shutdown all of its operation or to partially shut down, and to direct employees to take annual leave. However, in AGL Torrens Island Pty Ltd v Australian Municipal Administrative Clerical and Services Union (AGL)[17] Deputy President Bartel made some useful observations:
· A direction that the employee takes annual leave for a period, or part of the period of the shutdown, is subject to the test of reasonableness in s.93(3) of the Act.[18]
· The Commission’s research paper published as part of the 4 yearly review of modern awards states that the Act does not contain a specific shutdown provision, however it does grant some flexibility.[19]
· There is no singular meaning of shutdown or singular purpose.[20]
· Taking into account the Explanatory Memorandum, the test of reasonableness is at the individual employee level taking into account their particular circumstances.[21]
· The test of reasonableness needs to weigh competing interests.[22]
I do not find that clause 37(l) excludes or displaces the NES, rather it is an incidental clause to the operation of annual leave and therefore consistent with s.93(3) of the Act. Further, I am satisfied that both the clause and the Applicant’s practices have the necessary limitations and safeguards to direct the taking of annual leave for approval of the Agreement.
The HACSU also submit that clause 37(l) ‘represents a less beneficial term for the purposes of the BOOT. It submits that ‘medical practices’ Reference in the Nurses Award 2020 refers to general practices and the like and do not include ‘hospitals. Whilst shut down is provided for in the Nurses Award for medical practices, it is not similarly prescribed for ‘hospitals.’ Accordingly, a clause providing for the mandatory taking of annual leave in the event of shutdown represents a provision that is less beneficial than the position in the Nurses Award.’[23]
The HACSU did not provide any evidence that the reference to medical practices in the Award does not include hospitals or that it specifically excludes hospitals. The Award in clause 22.7 and 22.8 distinguishes the practice of directing nurses to take annual leave between medical practices and other businesses or operations captured by the coverage of the Award. I observe the coverage of the Award includes “health services” which is defined as “employers in the business and/ or activity of providing health and medical services and who employ nurses and persons who directly assist nurses in the provision of nursing care and nursing services.” This definition differs from the definition of an aged care employee. There is no definition of “medical practices” for the purposes of clause 22.7 or elsewhere. For this reason I do not agree with the HACSU that clause 22.7 does not apply to hospitals. The practical separation of provisions in the Award concern the capacity to direct nurses to take leave and in respect of rates for nurses working in aged care as opposed to medical services. On this basis I do not agree that the reference to medical practices is intended to not cover, or to exclude hospitals. In the absence of evidence supporting the HACSU submission, I cannot find that the clause in the Agreement represents a less beneficial term than in the Award.
I do not find in favour of the objections raised in respect to clause 37(l). The clause is not inconsistent with the Act, does not displace NES entitlements, there is no evidence of abuse of the clause which goes to reasonableness, the clause meets the operational requirements of the business and weighs the interest of employees with appropriate and relevant limitations and safeguards, nor I do not agree that the clause allows an unfettered right to abuse the consultation provisions. The clause does not offend the NES nor the BOOT.
Clause 37(a)(ii)(1) – shift workers additional leave entitlements
The HACSU submit that s.187 of the Act provides that ‘additional requirements’ must be satisfied for an enterprise agreement to be approved, particularly s.187(4) concerns particular kinds of employees as referenced in any provision within subdivision E. Section 196 within subdivision E deals with shiftworkers. It is not contested that the Applicant engages shiftworkers and for the purposes of s.196(1)(b) of the Act, the modern award in operation and which covers employees or describes the employee as a shiftworker for the purposes of the NES is the Nurses Award 2020. Having determined application of s.196(1), the Commission “must be satisfied that the Agreement defines or describes the employee as a shiftworker for the purposes of the NES.”[24]
Relevantly clause 22.2 of the Nurses Award 2020 provides:
‘22.2 Quantum of annual leave
(a)In addition to the entitlements in the NES, an employee is entitled to an additional week of annual leave on the same terms and conditions.
(b)A shiftworker , for the purposes of the additional week’s annual leave provided by the NES , is an employee who:
(i)is regularly rostered over 7 days of the week; and
(ii)regularly works on weekends.
(c)To avoid any doubt, this means that an employee who is not a shiftworker for the purposes of clause 22.2(b) above is entitled to 5 weeks of paid annual leave for each year of service with their employer, and an employee who is a shiftworker for the purposes of clause 22.2(b) above is entitled to 6 weeks of paid annual leave for each year of service with their employer.’
Clause 37(a)(ii)(1) of the Agreement provides:
‘(ii) Shift workers -- Additional week of annual leave
(1)In addition to the leave prescribed in sub-clause (i) above, shift workers, (as defined hereunder) will be entitled to an additional one week of paid annual leave. For the purposes of the NES and this clause a shift worker is defined as an Employee who:
(A) is regularly rostered to work over seven days of the week;
and regularly works weekends; or
(B) works not less than 20 weekend ordinary shifts (or any combination of Saturdays and Sundays to a total of not less than 20 shifts) in any one leave year; or
(C) Where an Employee with at least 12 months' continuous service is engaged for part of the 12-monthly period as a shift
worker (as per 37(a)(ii)(1 )(A) or (B)), he//she shall be entitled to have the period of annual leave as per sub-clause (a)(1) applied on a pro-rata basis.’
I observe that the clause in the Agreement is identical to the clause in the current agreement. The HACSU contend that the Award provides 5 weeks of annual leave and shiftworkers entitled to 6 weeks. While the Agreement provides an additional week of leave for shiftworkers as required by s.196(1) of the Act, the application of clause 22.2(a) of the Award provides a further week of leave in addition to the NES. The HACSU submit that the discrepancy is a NES issue, while the Applicant contends that it is not a NES but BOOT issue. The Applicant further contends that because of the higher rates of pay, the Agreement compensates for the differential. In addition, the Applicant contends that the definition of shiftworker in the Agreement is broader than the Award definition at clause 37(a)(ii)(1)(B).
In this instance both the day workers and shiftworkers receive one week less in annual leave, despite the broader definition at s.37(a)(ii)(1)(B). I agree that that issue raised by the HACSU is not a NES issue but rather an issue of the better off overall test. The NES requirement has been met. In terms of the BOOT, the analysis of nurses not receiving an additional week of leave does not result in a BOOT issue. Further evaluation on the lowest remuneration rate, shows that the Agreement provides for a rate better than $241 per week than the Award rate. The rates of pay in the Agreement are high enough to compensate for the difference in annual leave.
Various clauses that are less beneficial in terms of the better off overall test
The HACSU further raised a number of other terms of the Agreement that they deemed to be less beneficial. The concerns raised are as follows:
1. Cl. 12 (c)(iii): Casual employees are paid less when working overtime than equivalent Nurses Award (the Award) casual employees. For Award employees the overtime penalty is applied to the casual loaded rate. For Agreement employees the casual loading is excluded in the calculation.
2. Cl. 14(e): The Award provides for a 10 hour rest break between shifts. The Agreement only provides for a 9 hour rest break.
3. Cl. 15(d): Broken shifts are not a supported system of work and contrary to the Award which does not provide for broken shifts.
4. Cl. 18(a) first dot point: Time worked before midnight on a Sunday is not paid at Sunday penalty rates. The Award provides that such time would be paid at Sunday penalty rates.
5. Cl. 20(e): Rest period after overtime is only 8 hours. The Award provides for 10 hours rest period after overtime.
6. Cl. 22(a)(i): Rate for being on-call is only an hourly rate – the Award provides for minimum rates for 24 hours ‘or part thereof’. For example, an employee that is on-call for, say 4 hours in a 24 hour period, will be worse off than the same Award employee.
7. Cl. 28: An employee must work 5 or more consecutive days performing higher duties in order to be paid at the higher rate. The Award provides for payment of the higher rate for employees performing duties for 3 days or more.
…
9. Schedule 1: Rostering Arrangements Theatre and Endoscopy: The Schedule applies in priority to other Agreement terms. It contains less beneficial matters:
a. 2.4: Shifts of 4 hours or less will be worked by mutual agreement – this clause appears to remove any minimum engagement. The Award provides a two hour minimum engagement for casuals.
b. 4: Eligibility for 5 weeks leave imposes conditions that are not contained in the Award (5 weeks leave exists as of right)[25]
In assessing the BOOT, a comparison of the base rates of pay in the Agreement to base rates in the Award demonstrates that all employees are receiving between 25.02%-77.93% above the Award. Pursuant to s.193A of the Act I am required to make a global assessment of whether each employee would be better off overall, not to make a line-by-line analysis of the Agreement. In respect of the less beneficials raised by the HACSU, I am of the view that the substantially above Award rates of pay ensure that employees will be better off overall in all of the circumstances envisioned by the HACSU. This assessment is balanced by terms that provide greater flexibility without impact on the BOOT such as the potential for broken shifts or the application of a night shift penalty even though the Sunday shift penalty does not apply, noting that the Agreement night shift penalty is 27.5% compared to 15% under the Award, or that penalties which align to the Award are paid on higher base rates and the payment of a higher base rate when performing higher shift duties.
In relation to issue 9 a, the Applicant in their email submissions raised that the mutual agreement to work a shift of 4 hours or less in Schedule 1 clause 2.4 does not remove the minimum engagement in clauses 12(b)(iii) and (c)(i) of the Agreement. I am of the view that Schedule 1 clause 2.4 is not inconsistent with the minimum engagements and read together shifts cannot be agreed to of less than 3 hours.
Redundancy clause undertaking
The Commission raised concerns regarding the clause 50(k) of the Agreement which concerns the ability to vary severance payments. The clause reads as follows:
“Where the Employer obtains acceptable alternative employment for the Employee the severance payment scheme under subclause (e) will not apply. The Employee may otherwise have an entitlement to a severance payment, subject to sections 119 and 120 of the Act.”
In raising the issue, I advised that this is inconsistent with the NES however the NES precedent clause in clause 6 remedies this concern. In their email submissions the HACSU raise further concerns with this clause. In their written submissions of 26 February 2024, the Applicant proposed the following undertakings to remedy the inconsistencies:
Clause 50(k) of the Agreement is replaced with the following:
“Where the Employer obtains alternative employment for the Employee, the Calvary severance payment scheme under subclause (e) will not apply, and any entitlement to severance pay for the Employee will be in accordance with s.119 of the Act. On application by the Employer, the FWC may determine that the amount of severance pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate. Disputes in relation to this clause may be dealt with in accordance with clause 10 – Dispute Resolution Procedure”
The Applicant provided signed undertakings per the above on 6 March 2024 and a further revised undertaking on 7 March 2024 following concerns raised by HACSU in relation to the undertakings. Clause 50(k) is accordingly replaced with the following (changes underlined):
“Where the Employer obtains acceptable alternative employment for the Employee, the Calvary severance payment scheme under subclause (e) will not apply, and any entitlement to severance pay for the Employee will be in accordance with s.119 of the Act. Subject to s.120 of the Act, on application by the Employer, the FWC may determine that the amount of severance pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate. Disputes in relation to this clause may be dealt with in accordance with clause 10 – Dispute Resolution Procedure”
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.
Other Matters
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009, that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act 2009, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made after 6 June 2023.’
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The ANMF and the HASCU being bargaining representatives for the Agreement, have 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, will operate from 14 March 2024. The nominal expiry date of the Agreement is 1 July 2025.
COMMISSIONER
ANNEXURE A
[1]. Fair Work Bill 2008 Explanatory Memorandum at [382].
[2] HACSU written submissions [3] – [9].
[3] [2022] FWCFB 246.
[4] Applicant’s written submissions [22] - [30].
[5] Sections 43 and 44 Fair Work Act 2009.
[6] Ibid section 55(1).
[7] Ibid section 55(4).
[8] Ibid section 55(5).
[9] Ibid section 56.
[10] Ibid section 93(4).
[11] [2022] FWCFB 161 (25 August 2022) and [2022] FWCFB 246 (22 December 2022).
[12] [2022] FWCFB 161, [153] – [155].
[13] 4 yearly review of modern awards-Plain language-Shutdown provisions [2022] FWCFB 246.
[14] [2022] FWCFB 161, [138].
[15] Fair Work Bill 2008 Explanatory Memorandum at [381].
[16] [2022] FWCFB 161, [139].
[17] [2014] FWC 4193.
[18] Ibid [40].
[19] Ibid [42] and referenced in [55] of the research paper.
[20] Ibid [44].
[21] Ibid at [47].
[22] Ibid at [49].
[23] HACSU written submissions [9].
[24] Section 196(2) Fair Work Act 2009.
[25] Form F18A, question 7.
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