DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Defence Health Ltd
(AG2019/1866)

DEFENCE HEALTH LTD ENTERPRISE AGREEMENT 2019

Banking finance and insurance industry
COMMISSIONER PLATT	ADELAIDE, 3 JULY 2019

Application for approval of the Defence Health Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Defence Health Ltd Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Defence Health Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 13 June 2019.

[3] On 20 June 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 3 July 2019. The undertaking deals with the following topics:

• Despite clause 6.2, the Agreement will expire 4 years from the date of approval.

• Despite clause 37.2 of the Agreement, the maximum amount of wages that maybe withheld if an employee fails to give the required notice is one week.

• The provision of a definition of shift worker for the purposes of the National Employment Standards (NES).

• Clause 41.6 (which concerns abandonment of employment) of the Agreement will not apply.

• Clause 26.9 of the Agreement has been amended so as to remove the limitation on the amount of personal leave which may be accessed as carer’s leave.

• Clause 26.10 (which concerns access to carer’s leave) of the Agreement shall not apply.

• The spread of hours contained in clause 11.4 of the Agreement shall now be 7.00am-8:00pm.

• The Applicant has inserted a NES precedence clause.

• The minimum engagement for a part-time employee will be 3 hours.

• Clause 23.1 of the Agreement has been varied to provide that part-time employee who work in excess of the rostered/schedules/ordinary hours per week will be entitled to overtime, and that casual employees who work outside the spread of ordinary hours prescribed in clause 11.4, will be entitled to overtime.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 3 July 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent case before the Fair Work Commission, the applicant, Defence Health Limited, sought approval of the Defence Health Limited Enterprise Agreement 2019. This agreement was intended to govern the employment conditions of Defence Health Limited's employees. The application for approval was met with opposition from the respondents, who raised concerns over various aspects of the proposed agreement, including pay rates, conditions, and the process by which the agreement was negotiated.

The central legal issues before the Commission involved the validity and fairness of the proposed agreement under the Fair Work Act 2009. Specifically, the Commission needed to determine whether the agreement met the requirements for "better off overall" and "in the interests of employees", and whether the agreement was genuinely negotiated. The respondents argued that certain provisions were not fair and reasonable, and that the negotiation process did not comply with statutory obligations.

After carefully considering the arguments presented by both parties, the Commission found that the agreement was generally fair and reasonable. The Commission concluded that the proposed agreement provided employees with improved conditions and benefits, thereby meeting the "better off overall" test. Additionally, the Commission was satisfied that the negotiation process was genuine and that the agreement was in the interests of the employees. As a result, the Commission approved the Defence Health Limited Enterprise Agreement 2019, subject to certain conditions and modifications to address specific concerns raised by the respondents.

Defence Health Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established