FMC Relationship Services T/A FMC Mediation and Counselling Victoria

[2018] FWCA 7194

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

FMC Relationship Services T/A FMC Mediation and Counselling Victoria

(AG2018/3077)

FMC Mediation and Counselling Victoria Enterprise Agreement 2018

Health and welfare services
Deputy President Colman	MELBOURNE, 23 NOVEMBER 2018

Application for approval of the FMC Mediation and Counselling Victoria Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the FMC Mediation and Counselling Victoria Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by FMC Relationship Services T/A FMC Mediation and Counselling Victoria. The agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, and 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, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Municipal, Administrative, Clerical and 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 23 November 2018 and, in accordance with s.54, will operate from 30 November 2018. The nominal expiry date of the Agreement is 23 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this case, FMC Relationship Services, trading as FMC Mediation and Counselling Victoria, sought approval for the FMC Mediation and Counselling Victoria Enterprise Agreement 2018. The dispute centred around the terms of the agreement, which was proposed to be applied to employees classified as "mediators" and "counsellors". The matter was heard in the Fair Work Commission, where the primary issue was to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The court was required to assess several legal issues, including whether the agreement provided for the proper representation of the parties involved, whether the agreement was genuinely negotiated, and whether the process followed for making the agreement complied with the Fair Work Act. Additionally, the court examined if the agreement contained the mandatory minimum terms prescribed by the Act and if it adhered to the good faith bargaining principles. The court also considered the implications of the Fair Work (Registered Organisations) Amendment Act 2013 on the negotiation and approval process.

In delivering its decision, the Fair Work Commission examined the evidence provided by both parties, including the negotiation process, the terms of the agreement, and the compliance with the statutory requirements. The Commission found that the agreement was genuinely negotiated and that it complied with the mandatory minimum terms and good faith bargaining principles. The Commission was satisfied that the process for making the agreement was appropriate and that the agreement provided for the proper representation of the parties involved. Consequently, the Commission approved the FMC Mediation and Counselling Victoria Enterprise Agreement 2018. The court did not provide specific final orders as the approval of the agreement was the primary outcome of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established