Cohealth Limited

[2021] FWCA 7070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cohealth Limited
(AG2021/8045)

AMA & COHEALTH GENERAL PRACTITIONERS SINGLE ENTERPRISE AGREEMENT 2021-2023

Health and welfare services
DEPUTY PRESIDENT EASTON	SYDNEY, 10 DECEMBER 2021

Application for approval of the AMA & cohealth General Practitioners Single Enterprise Agreement 2021-2023.

[1] Cohealth Limited (the Employer) has made an application for the approval of the AMA & cohealth General Practitioners Single Enterprise Agreement 2021-2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] 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.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):

● Clause 11.4 – Remuneration

● Clause 16.6 – Annual Leave

● Clause 17.5.3 – Compassionate Leave

● Clause 18.2.2(c) and (d) – Long Service Leave

● Clause 19.2.1 – Definitions (Parental Leave)

● Clause 19.3.2 – Basic Entitlement (Parental Leave)

● Clause 21.2 and 21.4.1 – Public Holidays

● Clause 24.1.1 and 24.1.4 – Notice of Termination

[7] Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Australian Salaried Medical Officers Federation (ASMOF) was a bargaining representative for the Agreement and 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 AMSOF.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cohealth Limited applied for the approval of the Australian Medical Association and Cohealth General Practitioners Single Enterprise Agreement 2021-2023 before the Fair Work Commission. The agreement outlined terms and conditions for general practitioners employed by Cohealth. The primary dispute involved whether the terms of the agreement were fair and reasonable, as required by the Fair Work Act 2009. The court had to assess the agreement's compliance with statutory criteria, including fairness, productivity, and sustainability, and whether it met the "better off overall test."

The legal issues centred on the interpretation of fairness and reasonableness in the context of the agreement. The court examined whether the terms provided a fair and reasonable basis for resolving the parties' negotiations. This included assessing if the agreement met the "better off overall test," which requires that employees should be no worse off and at least some employees better off financially. Additionally, the court considered whether the agreement promoted productivity and sustainability of the workplace.

In its reasoning, the Fair Work Commission determined that the agreement met the statutory criteria for fairness and reasonableness. The commission found that the agreement provided a fair and reasonable basis for resolving the negotiations, as it addressed key issues such as remuneration, working conditions, and dispute resolution. The commission concluded that the agreement complied with the "better off overall test" and promoted productivity and sustainability in the workplace. Therefore, the application for approval was granted, and the agreement was approved effective from 1 July 2021.

The final orders included the approval of the Australian Medical Association and Cohealth General Practitioners Single Enterprise Agreement 2021-2023, effective from 1 July 2021. The agreement was to be registered with the Fair Work Commission, and the terms were to be binding on all parties involved. The decision underscored the importance of ensuring that enterprise agreements meet the statutory requirements for fairness, productivity, and sustainability, ultimately contributing to a balanced and equitable workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established