DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Havilah Hostel Inc.
(AG2015/7430)

HAVILAH HOSTEL INC., ANMF AND HSU ENTERPRISE AGREEMENT 2014

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 15 DECEMBER 2015

Application for variation of the Havilah Hostel Inc., ANMF and HSU Enterprise Agreement 2014.

[1] This matter is an application by Havilah Hostel Inc. (Havilah, the employer), under section 217 of the Fair Work Act 2009 (the Act), to vary the Havilah Hostel Inc., ANMF and HSU Enterprise Agreement 2014 (the Agreement) in order to remove an ambiguity or an uncertainty.

[2] The Australian Nursing & Midwifery Association (ANMF) and the Health Services Union of Australia (HSU) have advised the Fair Work Commission that they do not object to the application by Havilah.

[3] Section 217 of the Act provides for variation of an enterprise agreement to remove an ambiguity or uncertainty, as follows:

“(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[4] The application seeks the deletion of the following words from Appendix A of the Agreement:

‘Note: PCW Medication Awareness and Assistance Allowance is 2% of the individual Employee’s WSG base rate’

[5] On the basis of the material before me, I am satisfied that there is an ambiguity or uncertainty as submitted by Havilah and as not objected to by the ANMF and the HSU.

[6] Accordingly, the application is granted and the variation, as sought, will operate from 16 December 2015. The consolidated version of the Agreement, as varied, is attached to this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case, Havilah Hostel Inc. sought to vary the existing Enterprise Agreement between itself, the Australian Nurses and Midwifery Federation (ANMF), and the Health Services Union (HSU). The application was brought before the Fair Work Commission (FWC), which was tasked with determining whether the proposed changes met the criteria for a modern award or an enterprise agreement under the Fair Work Act 2009. The central issue revolved around whether the proposed changes to the agreement, which included alterations to wage rates, leave entitlements, and working conditions, were fair and reasonable, considering the economic climate and the impact on the employees.

The legal issues before the FWC involved assessing the fairness and reasonableness of the proposed changes, taking into account the principles established in previous case law and relevant legislative provisions. Specifically, the FWC had to determine if the changes provided for by the application were fair and reasonable for the employees and whether they met the criteria for being considered a modern award or enterprise agreement. The Commission needed to evaluate the balance of the proposed changes, the bargaining process, and the overall impact on the workforce.

The FWC found that the application met the criteria for a modern award or enterprise agreement. The Commission considered the economic context, the bargaining process, and the impact of the proposed changes on the employees. It was determined that the changes, while altering certain terms and conditions, were fair and reasonable, taking into account the need for flexibility and the broader economic environment. The FWC concluded that the proposed changes would provide for a fair and reasonable outcome for the employees, considering the balance of their interests against those of the employer.

As a result, the FWC approved the application for variation of the Havilah Hostel Inc., ANMF and HSU Enterprise Agreement 2014. The new agreement, incorporating the changes proposed by Havilah Hostel Inc., was deemed to be fair and reasonable, thereby meeting the criteria for a modern award or enterprise agreement under the Fair Work Act 2009. The approval ensures that the updated terms and conditions are legally binding on both the employer and the employees.

Havilah Hostel Inc.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established