EMA Consulting Pty Ltd T/A EMA Consulting

[2024] FWCA 572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

EMA Consulting Pty Ltd T/A EMA Consulting

(AG2024/40)

BURNSIDE HOSPITAL STEPNEY HEALTH SERVICES SUPPORT EMPLOYEES ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 12 FEBRUARY 2024

Application for approval of the Burnside Hospital Stepney Health Services Support Employees Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Burnside Hospital Stepney Health Services Support Employees Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by EMA Consulting Pty Ltd T/A EMA Consulting (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 24 January 2024.

On 1 February 2024, 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 through the provision of an undertaking.

The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 9 January 2024.

The Applicant has submitted an undertaking in the required form dated 2 February 2024, a copy of which is attached to the Agreement. The undertaking ensures the BOOT is met with respect to higher duties, allowances, annual leave loading and part time employment.

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.

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.

The Health Services Union, 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) of the Act I note that the Agreement covers this organisation.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 29 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, EMA Consulting Pty Ltd, trading as EMA Consulting, sought the approval of the Burnside Hospital Stepney Health Services Support Employees Enterprise Agreement 2023. The respondents to the application were Burnside Hospital, the employer, and the Health Services Union, representing the employees. The matter was heard in the Fair Work Commission, an Australian industrial relations tribunal.

The legal issues before the Commission revolved around whether the proposed enterprise agreement complied with the relevant legislative requirements, particularly sections of the Fair Work Act 2009, and whether the agreement was fairly and appropriately negotiated. Key issues included whether the agreement contained mandatory terms, the process by which the agreement was negotiated, and whether there was sufficient employee support for the agreement. The Commission also considered whether the agreement met the requirements for "better off overall" for the employees.

The Fair Work Commission determined that the proposed enterprise agreement complied with the relevant legislative provisions and was appropriately negotiated. The Commission found that the agreement contained all the mandatory terms required by the Fair Work Act and that the negotiation process was conducted in good faith. Furthermore, the Commission was satisfied that the agreement provided a better overall outcome for the employees, as evidenced by the support of a majority of the relevant employees. Consequently, the Commission approved the Burnside Hospital Stepney Health Services Support Employees Enterprise Agreement 2023.

As a result of the decision, the approved enterprise agreement now governs the employment conditions for the health services support employees at Burnside Hospital. The agreement is legally binding and will remain in effect until it is either terminated or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established