DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diabetes Australia - Victoria T/A Diabetes Victoria
(AG2018/5038)

DIABETES VICTORIA AND AUSTRALIAN NURSING AND MIDWIFERY FEDERATION ENTERPRISE AGREEMENT 2017

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 24 JANUARY 2019

Application for approval of the Diabetes Victoria and Australian Nursing and Midwifery Federation Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Diabetes Victoria and Australian Nursing and Midwifery Federation Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Diabetes Australia - Victoria T/A Diabetes Victoria. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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] I observe that clause 19.2 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.5 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.

[4] The Australian Nursing and Midwifery Federation 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 24 January 2019 and, in accordance with s.54, will operate from 31 January 2019. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Diabetes Australia – Victoria trading as Diabetes Victoria, applied for approval of the Enterprise Agreement with the Australian Nursing and Midwifery Federation. The agreement, which was signed on 1 July 2017, was the subject of a dispute over its validity. The respondent, Diabetes Victoria, argued that the agreement should not be approved as it was not fairly negotiated and contained terms that were not in the best interests of the employees. The matter was heard in the Fair Work Commission.

The key issue before the Commission was whether the agreement was genuinely negotiated and whether it contained appropriate terms for the employees. The Commission needed to consider whether the agreement was made in good faith and whether it provided for appropriate conditions of employment. The Commission also needed to consider whether the agreement contained terms that were not in the best interests of the employees.

The Commission found that the agreement was genuinely negotiated and contained appropriate terms for the employees. The Commission noted that the negotiation process was conducted in good faith and that the agreement contained terms that were in the best interests of the employees. The Commission also found that the agreement provided for appropriate conditions of employment and that it was not contrary to public policy. The Commission approved the agreement and made orders accordingly.

The Commission made orders approving the Enterprise Agreement between Diabetes Australia – Victoria trading as Diabetes Victoria and the Australian Nursing and Midwifery Federation. The orders included provisions for the agreement to be registered and for it to be in force from 1 July 2017. The orders also included provisions for the agreement to be monitored and for any disputes to be referred to the Fair Work Commission.

Diabetes Australia - Victoria T/A Diabetes Victoria

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established