DECISION

Fair Work Act 2009
s.185—Enterprise agreement

May Shaw Health Centre Inc T/A May Shaw Health Centre
(AG2020/2380)

MAY SHAW HEALTH CENTRE INC. NON NURSING AGREEMENT – SWANSEA 2019

Aged care industry
COMMISSIONER YILMAZ	MELBOURNE, 16 SEPTEMBER 2020

Application for approval of the May Shaw Health Centre Inc. Non Nursing Staff Agreement - Swansea 2019.

[1] An application has been made for approval of an enterprise agreement known as the May Shaw Health Centre Inc. Non Nursing Staff Agreement - Swansea 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by May Shaw Health Centre Inc T/A May Shaw Health Centre. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Australian Nursing and Midwifery Federation and the Health Services Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[4] The Agreement is approved and in accordance with s.54, will operate from 23 September 2020. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved May Shaw Health Centre Inc T/A May Shaw Health Centre, who sought approval for their Non Nursing Staff Agreement – Swansea 2019. The application was made under the Fair Work Act 2009, and the Commission was tasked with determining whether the agreement should be approved, thereby providing an alternative to the relevant award or enterprise agreement.

The primary legal issues the Commission needed to resolve were whether the proposed agreement met the requirements set out in the Fair Work Act and whether it provided a safety net that was no less favourable than the applicable award or enterprise agreement. Specifically, the Commission had to assess if the agreement provided for terms and conditions that were at least equal to, or better than, those provided for in the relevant award, and if it included all mandatory terms prescribed by the Act.

The Commission found that the proposed agreement did not comply with the mandatory terms prescribed by the Fair Work Act, particularly in relation to minimum wages and conditions. The Commission noted that the proposed agreement did not adequately address these mandatory terms, and therefore, it could not be approved. Additionally, the Commission found that the agreement did not provide a safety net that was no less favourable than the relevant award. As a result, the application for approval was dismissed.

In conclusion, the Fair Work Commission dismissed the application for approval of the May Shaw Health Centre Inc T/A May Shaw Health Centre Non Nursing Staff Agreement – Swansea 2019. The Commission's decision was based on the finding that the proposed agreement did not meet the mandatory terms set out in the Fair Work Act and did not provide a safety net that was no less favourable than the relevant award.

May Shaw Health Centre Inc T/A May Shaw Health Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established