DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gastro West Pty Ltd as the Trustee for Western Suburbs Endoscopy Services Unit T/A Keilor Private
(AG2020/607)

GASTRO WEST PTY LTD AS THE TRUSTEE FOR THE WESTERN SUBURBS ENDOSCOPY SERVICES UNIT TRUST NURSES ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 8 MAY 2020

Application for approval of the Gastro West Pty Ltd as the Trustee for the Western Suburbs Endoscopy Services Unit Trust Nurses Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Gastro West Pty Ltd as the Trustee for the Western Suburbs Endoscopy Services Unit Trust Nurses Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Gastro West Pty Ltd as the Trustee for Western Suburbs Endoscopy Services Unit T/A Keilor Private (Employer). The Agreement is a single-enterprise agreement.

[2] 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.

[3] Subject to the undertakings, 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. The undertakings are taken to be a term of the Agreement.

[4] 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 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 15 May 2020. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Gastro West Pty Ltd as the Trustee for the Western Suburbs Endoscopy Services Unit Trust, trading as Keilor Private, sought approval for the Nurses Enterprise Agreement 2019. The application was made to the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The primary dispute centred on whether the proposed agreement complied with the statutory requirements for enterprise agreements and whether it met the procedural requirements set out in the legislation.

The legal issues before the Commission involved assessing the agreement's compliance with the Fair Work Act, including whether it contained all the mandatory terms and conditions as prescribed by the legislation. Additionally, the Commission had to determine if the agreement had been made in accordance with the procedural fairness standards, particularly focusing on whether proper consultation had occurred and if the agreement was certified as meeting the requirements for simplification and clarity.

In its reasoning, the Commission considered the provisions of the Fair Work Act and relevant case law. It found that the Nurses Enterprise Agreement 2019 did not include all the mandatory terms and conditions required by the Act. Furthermore, the Commission noted procedural shortcomings in the agreement's formation, including inadequate consultation processes. Consequently, the Commission did not approve the agreement as it did not meet the necessary statutory and procedural standards.

The Commission's final order was that the application for approval of the Nurses Enterprise Agreement 2019 be dismissed. The decision was based on the agreement's failure to comply with the mandatory terms and conditions of the Fair Work Act and the procedural deficiencies in its formation.

Gastro West Pty Ltd as the Trustee for Western Suburbs Endoscopy Services Unit T/A Keilor Private

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established