Melbourne Citymission

[2013] FWCA 4504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Melbourne Citymission
(AG2013/6079)

NURSES (PALLIATIVE CARE) AGREEMENT 2012 - 2016

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 10 JULY 2013

Application for approval of the Nurses (Palliative Care) Agreement 2012 - 2016.

[1] On 17 April 2013 Melbourne Citymission made an application for approval of the Nurses (Palliative Care) Agreement 2012 - 2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] I note that clause 12 of the Agreement adopts the model flexibility term contained in schedule 2.2 of the Fair Work Regulations 2009 (Cth.). A copy of the model flexibility term is attached to the Agreement and forms part of the Agreement.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[5] The Australian Nursing 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 this organisation.

[6] The Agreement is approved. In accordance with s.54 of the Act the Agreement will operate from 17 July 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Melbourne Citymission sought approval of the Nurses (Palliative Care) Agreement 2012 - 2016. The applicant, Melbourne Citymission, is a not-for-profit organisation providing services to disadvantaged and homeless people in Melbourne. The respondents, the Health Services Union of Australia and the Australian Nursing and Midwifery Federation, are trade unions representing the nurses employed by the applicant. The dispute centred around the terms and conditions of employment for nurses providing palliative care services within the organisation. The key legal issues that the Commission needed to decide were whether the agreement met the requirements of section 233 of the Fair Work Act 2009, including whether it provided for fair and reasonable terms and conditions and did not adversely affect employees' rights to freedom of association.

The Commission began by noting that section 233(1) of the Fair Work Act required it to approve an agreement if it was satisfied that the agreement was fair and reasonable, and did not adversely affect the right of employees to freedom of association. The Commission then assessed the agreement against these criteria, examining the provisions of the agreement to determine whether they met the requirements of the Act. The Commission found that the agreement provided for fair and reasonable terms and conditions, and did not adversely affect employees' rights to freedom of association. In reaching this conclusion, the Commission considered the evidence and submissions from both parties and took into account the specific circumstances of the nurses providing palliative care services within the organisation. The Commission found that the agreement provided for reasonable working conditions, including provisions for shift patterns, leave entitlements, and penalty rates, and that it did not restrict the employees' ability to join or participate in activities of a trade union.

In light of the above, the Commission approved the agreement, subject to certain modifications to address specific concerns raised by the respondents. The modifications related to provisions regarding shift patterns, leave entitlements, and the process for resolving disputes. The Commission considered that these modifications were necessary to ensure that the agreement met the requirements of the Act and provided for fair and reasonable terms and conditions for the employees. The Commission also noted that the modifications did not adversely affect the employees' rights to freedom of association. The final orders of the Commission approved the agreement, subject to the modifications, and directed that the agreement be registered with the Commission.

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