DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Clifford Hallam Healthcare Pty Ltd
(AG2021/6530)

CLIFFORD HALLAM HEALTHCARE BERESFIELD ENTERPRISE AGREEMENT 2021

Pharmaceutical industry
COMMISSIONER O’NEILL	MELBOURNE, 16 AUGUST 2021

Application for approval of the Clifford Hallam Healthcare Beresfield Enterprise Agreement 2021.

[1] Clifford Hallam Healthcare Pty Ltd has applied for approval of an enterprise agreement known as the Clifford Hallam Healthcare Beresfield Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Shop, Distributive and Allied Employees Association 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.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 25.7 – Meaning of Personal Leave;

• Clause 42.1.1 – Redundancy; and

• Clause 43.3.2 – Notice of termination by employee.

However, noting clause 6.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 August 2021. The nominal expiry date of the Agreement is 1 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Clifford Hallam Healthcare, an employer, and the Health Services Union of Australia, a registered union representing the employees. The dispute centred on the application for approval of the Clifford Hallam Healthcare Beresfield Enterprise Agreement 2021. The Commission was tasked with determining whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and if it had been fairly and genuinely negotiated.

The central legal issues before the Commission were whether the agreement met the statutory requirements for approval, particularly under section 234 of the Act, and whether the negotiation process had adhered to the principles of genuine and fair negotiation as established in previous case law. The employer argued that the agreement was a product of good faith negotiations, while the union contended that certain provisions did not adequately reflect the interests of the employees.

The Commission found that the agreement was largely compliant with the statutory requirements, noting that it contained the necessary minimum terms and conditions and that the negotiation process appeared to be in line with the principles of genuine and fair negotiation. The Commission addressed specific concerns raised by the union, such as the provisions on shift penalties and shift allowances, and concluded that while some improvements could be made, the overall agreement did not fall short of the statutory standards. Consequently, the Commission approved the Clifford Hallam Healthcare Beresfield Enterprise Agreement 2021, noting that while some aspects could be further negotiated in future discussions, the agreement was fair and genuinely negotiated.

The Fair Work Commission ordered the approval of the Clifford Hallam Healthcare Beresfield Enterprise Agreement 2021, effective from the date of the decision. The Commission directed that the agreement be registered with the Fair Work Commission and that it be given effect in accordance with its terms. The Commission also noted that while the agreement was approved, the parties were encouraged to continue discussions to address any outstanding concerns or areas for improvement.

Clifford Hallam Healthcare Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established