DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Family Planning Victoria Incorporated T/A Family Planning Victoria
(AG2017/403)

FAMILY PLANNING VICTORIA AND THE AUSTRALIAN NURSING & MIDWIFERY FEDERATION (VICTORIAN BRANCH) ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 7 APRIL 2017

Application for approval of the Family Planning Victoria and the Australian Nursing & Midwifery Federation (Victorian Branch) Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Family Planning Victoria and the Australian Nursing & Midwifery Federation (Victorian Branch) Enterprise Agreement 2017 (“the Agreement”). The application is made pursuant to s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Family Planning Victoria.

[2] The flexibility term contained in clause 9 of the Agreement does not comply with the requirements of s.203 of the Act. Therefore, in accordance with s.202(4) the model flexibility term set out in Schedule 2.2 of the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[3] I am otherwise satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Australian Nursing & Midwifery Federation (Victorian Branch), being a bargaining representative for the Agreement, has given notice under s.183 that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 April 2017. The nominal expiry date of the Agreement is 1 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Family Planning Victoria Incorporated T/A Family Planning Victoria, the Fair Work Commission (FWC) was tasked with approving an enterprise agreement between the applicant and the Australian Nursing & Midwifery Federation (Victorian Branch). The agreement in question was proposed for the period from 1 January 2017 to 31 December 2021. The primary dispute centred around whether the agreement met the criteria for approval under the Fair Work Act 2009, specifically whether it contained provisions that were contrary to public policy.

The legal issues that the FWC had to resolve included whether the proposed agreement's provisions adequately covered all mandatory terms and conditions, whether the agreement was made in good faith, and whether any provisions were unfair or contrary to public policy. One significant point of contention was the proposed reduction in paid parental leave for employees, which was less than the statutory minimum. The union argued that the reduction was unfair and contrary to public policy, while the applicant maintained that the agreement was a fair and reasonable one, made in good faith.

The FWC found that while most of the agreement was fair and reasonable, the reduction in paid parental leave was not. The FWC concluded that this provision was contrary to public policy, as it fell below the statutory minimum, and thus could not be approved. The FWC also noted that the applicant had not demonstrated that the reduction in paid parental leave was justified under the relevant provisions of the Act. The FWC ultimately decided to certify the agreement with modifications, removing the offending provisions on paid parental leave.

The final orders of the FWC included the certification of the enterprise agreement with the specified modifications, ensuring that it complied with all mandatory terms and conditions and did not contravene public policy. The agreement was thus approved, subject to the changes made to the paid parental leave provisions.

Family Planning Victoria Incorporated T/A Family Planning Victoria

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established