Melbourne City Mission

[2025] FWCA 634

[2025] FWCA 634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Melbourne City Mission

(AG2024/5305)

MELBOURNE CITY MISSION HEALTH PROFESSIONALS ENTERPRISE AGREEMENT 2024-2026

Health and welfare services
COMMISSIONER CONNOLLY	MELBOURNE, 18 FEBRUARY 2025

Application for approval of the Melbourne City Mission Health Professionals Enterprise Agreement 2024-2026

1. An application has been made for approval of an enterprise agreement known as the Melbourne City Mission Health Professionals Enterprise Agreement 2024-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Melbourne City Mission (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 January 2025.

1. The notification time for the Agreement under s.173(2) was 10 October 2023 and the Agreement was made on 19 December 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1]

1. On 5 February 2025, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the reference to the title of the Agreement being Melbourne City Mission Health Professionals Enterprise Agreement rather than Melbourne City Mission Health Professionals Enterprise Agreement 2024-2026 had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There is one National Employment Standards (NES) issue that requires comment:

• Personal Leave: Clause 40.6 of the Agreement provides that the employee taking personal leave shall state if the nature of the illness is a notifiable infectious illness such as gastroenteritis or influenza, and the estimated duration of the absence. Please note that this appears to impose a requirement not contained in the Act or the Award.
  
  Additionally, clause 40.6 of the Agreement provides that Employees must take all reasonable steps to advise their line manager by phone of their absence from duty as near as practicable to, but preferably no less than one and a half hours prior to their normal or rostered commencement time. Provided that if it is not practicable to inform the employer within the times specified above, employees shall inform their employer as soon as practicable thereafter. This may be inconsistent with s. 107 of the Act, which provides for notice to be given as soon as reasonably practicable (which may be a time after the leave has started).

1. Clause 3 of the Agreement acts as an effective NES precedence clause, in that it states that in the event that the Agreement also has provisions regarding matters dealt with under the NES, and the provisions in the NES set out in the Act are more favourable to an employee in a particular respect than the Agreement, then the NES will prevail in that respect and the provisions dealing with that matter in the Agreement will have no effect in respect of that employee. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 10 February 2025 and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative. The bargaining representative that responded, supported the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The Health Services Union-Victoria No. 3 Branch (VAHPA) 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 March 2026.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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