Family Planning NSW T/A Family Planning Australia Summary

[2024] FWCA 3039

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Family Planning NSW T/A Family Planning Australia

(AG2024/2876)

FAMILY PLANNING NSW AND NSW NURSES AND MIDWIVES’ ENTERPRISE AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT BOYCE	SYDNEY, 20 AUGUST 2024

Application for approval of the Family Planning NSW and NSW Nurses and Midwives’ Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement to be known as the Family Planning NSW and NSW Nurses and Midwives’ Enterprise Agreement 2024 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Family Planning NSW T/A Family Planning Australia (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 19 August 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Nurses Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 August 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Family Planning NSW, trading as Family Planning Australia, and the NSW Nurses and Midwives' Association. The parties sought approval of their 2024 enterprise agreement under the Fair Work Act 2009. The applicant, Family Planning NSW, sought to implement various terms and conditions affecting its workforce, which were negotiated with the union. The union, in turn, argued that the proposed agreement met the statutory requirements for approval.

The central legal issues before the commission were whether the agreement contained all the mandated terms, complied with the good faith bargaining provisions, and whether it met the 'better off overall test'. The commission had to assess if the agreement provided employees with a fair and reasonable set of terms and conditions, ensuring they were at least as beneficial as the applicable awards or previous agreements. Additionally, the commission examined whether the negotiation process adhered to the good faith bargaining obligations outlined in the Fair Work Act.

The commission found that the proposed agreement satisfied all the necessary criteria for approval. It contained all the mandated terms, and the negotiation process was conducted in good faith. The better off overall test was met as the agreement provided employees with terms and conditions that were at least as beneficial as their previous entitlements. The commission considered the comprehensive nature of the agreement, including provisions for wages, hours of work, and other employment conditions, and concluded that it was fair and reasonable.

Consequently, the commission approved the Family Planning NSW and NSW Nurses and Midwives’ Enterprise Agreement 2024, effective from the date of the decision. The agreement was certified and would apply to the employees of Family Planning NSW as of the specified commencement date, ensuring that the terms and conditions were legally binding and enforceable under the Fair Work Act.

Family Planning NSW T/A Family Planning Australia

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