Havilah Hostel Inc.

[2020] FWCA 896

[2020] FWCA 896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Havilah Hostel Inc.
(AG2019/4501)

HAVILAH HOSTEL INC., ANMF AND HSU ENTERPRISE AGREEMENT 2017

Health and welfare services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 19 FEBRUARY 2020

Application for approval of the Havilah Hostel Inc., ANMF and HSU Enterprise Agreement 2017.

[1] Havilah Hostel Inc. has applied for approval of a single enterprise agreement known as the Havilah Hostel Inc., ANMF and HSU Enterprise Agreement 2017 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Application was made to correct a typographical error in the original application and to include an Agreement signature page after the Application was made. I am satisfied that these amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] I am not satisfied that the Applicant took all reasonable steps to distribute the Agreement as required by s.180(2). The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it included minor modification to the prescribed content. In all of the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1 I am satisfied that:

a) these constitute minor procedural or technical errors for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by these errors.

[5] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] Noting clause 6.1 of the Agreement, I am also satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[7] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative supported the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] On the basis of the material contained in the amended application, further information provided on request of the Commission and 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.

[9] The Australian Nursing and Midwifery Federation (Victorian Branch), being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[10] The Agreement was approved on 19 February 2020 and, in accordance with s.54, will operate from 26 February 2020. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

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