DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dandenong Gastroenterology Pty Ltd T/A The Digestive Health Centre
(AG2019/2914)

DANDENONG GASTROENTEROLOGY PTY LTD ENTERPRISE AGREEMENT DECEMBER 2018-2022

Health and welfare services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 26 SEPTEMBER 2019

Application for approval of the Dandenong Gastroenterology Pty Ltd Enterprise Agreement December 2018-2022.

[1] Dandenong Gastroenterology Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Dandenong Gastroenterology Pty Ltd Enterprise Agreement December 2018-2022 (the Agreement) pursuant to 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 the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, the additional information provided by the Employer, 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.

[4] I observe that clause 23 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.2 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 was approved on 26 September 2019 and, in accordance with s 54, will operate from 3 October 2019. The nominal expiry date of the Agreement is 26 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Dandenong Gastroenterology Pty Ltd, trading as The Digestive Health Centre, applied to the Fair Work Commission for the approval of the enterprise agreement it had entered into with its employees. The dispute centred on the terms and conditions of employment as outlined in the agreement. The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009.

The primary legal issue the Commission had to resolve was whether the agreement provided for the employees’ pay and conditions of employment in a fair and reasonable manner, taking into account the objectives of the Fair Work Act, including the promotion of high levels of employment and the balancing of the interests of employers and employees. The Commission also needed to consider whether the agreement included appropriate dispute resolution mechanisms and whether it complied with the specific requirements of the Act, such as those concerning the bargaining period and the process through which the agreement was made.

In assessing the agreement, the Commission considered the submissions from both the employer and the employees’ representative, as well as any relevant evidence provided. The Commission found that the agreement was fair and reasonable, taking into account the objectives of the Act and the specific circumstances of the workplace. The Commission noted that the agreement contained provisions for pay rates, hours of work, leave entitlements, and other conditions that were in line with industry standards and did not disadvantage the employees. The Commission also found that the agreement included appropriate dispute resolution mechanisms and that it had been made in accordance with the requirements of the Act.

Based on its findings, the Commission approved the enterprise agreement, subject to certain conditions. The conditions included a requirement for the employer to provide a notice of changes to the agreement and a requirement for the employer to provide certain information to the employees. The Commission’s decision was based on its determination that the agreement was fair and reasonable and met the requirements of the Act.

Dandenong Gastroenterology Pty Ltd T/A The Digestive Health Centre

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established