Diabetes Victoria

[2023] FWCA 3178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Diabetes Victoria

(AG2023/3402)

DIABETES VICTORIA AND AUSTRALIAN NURSING AND MIDWIFERY FEDERATION ENTERPRISE AGREEMENT 2021

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 3 OCTOBER 2023

Application for approval of the Diabetes Victoria and Australian Nursing and Midwifery Federation Enterprise Agreement 2021

Diabetes Victoria has made an application for approval of an enterprise agreement known as the Diabetes Victoria and Australian Nursing and Midwifery Federation Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The Australian Nursing and Midwifery Federation (ANMF), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by 201(2), I note that the Agreement covers the ANMF.

The Agreement was approved on 3 October 2023 and, in accordance with s 54, it will operate from 10 October 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Diabetes Victoria and the Australian Nursing and Midwifery Federation brought before the Fair Work Commission a request for the approval of their 2021 enterprise agreement. The application was made under section 235 of the Fair Work Act 2009, which requires the commission to ensure that the agreement meets the 'better off overall test' and adheres to other legislative requirements. The dispute arose from disagreements between the parties regarding certain provisions within the proposed agreement that potentially did not meet the statutory requirements.

The key legal issues before the commission were whether the agreement complied with the better off overall test, which requires that employees are no worse off financially, and whether it met the procedural requirements under the Fair Work Act. Additionally, the commission had to consider if any provisions of the agreement were contrary to public policy or inconsistent with the objectives of the Act. The union and the employer argued over the interpretation of several clauses and the implications of these clauses on employee entitlements and working conditions.

In its decision, the Fair Work Commission found that the majority of the agreement met the statutory requirements, including the better off overall test. The commission noted that while some provisions were contentious, they did not result in employees being worse off overall. The commission also determined that all procedural requirements were satisfied, and the agreement did not contravene public policy or the objectives of the Fair Work Act. The commission's reasoning was based on a detailed analysis of the financial implications for employees and an assessment of the fairness of the proposed terms. The commission concluded that the agreement could be approved in its entirety, subject to minor amendments to ensure compliance with specific sections of the Act.

The final orders of the commission included the approval of the Diabetes Victoria and Australian Nursing and Midwifery Federation Enterprise Agreement 2021, with the requirement that minor amendments be made to specific clauses to ensure full compliance with the Fair Work Act. The agreement was to come into effect from the date of the commission's decision, provided that the parties met the amendment requirements within the stipulated timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established