Melbourne Nursing Agency Pty Ltd - [2010] FWA 4133

[2010] FWA 4133

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Melbourne Nursing Agency Pty Ltd
(AG2010/838)

COMMISSIONER MCKENNA

SYDNEY, 8 JUNE 2010

Melbourne Nursing Agency Pty Ltd Enterprise Agreement 2010.

[1] Melbourne Nursing Agency Pty Ltd (“the applicant”) has made an application, pursuant to s.185 of the Fair Work Act 2009 (“the Act”), seeking the approval of an enterprise agreement titled the Melbourne Nursing Agency Pty Ltd Enterprise Agreement 2010 (“the Agreement”). The Agreement is a single-enterprise agreement.

[2] Clause 2.7 of the statutory declaration comprising the Form F17, namely, the employer’s declaration in support of the application for the approval of the enterprise agreement (“the employer’s declaration”), indicates that four employees will be covered by the Agreement. Of those four, two employees cast a valid vote to approve the Agreement.

[3] Clause 2.8 of the employer’s declaration further indicates that the Agreement does not cover all employees of the applicant. In response to the question at cl.2.9 of the employer’s declaration, the following information (in italics) was provided:

“2.9 If the answer to question 2.8 is “No”, specify the groups(s) of employees covered by the agreement and how FWA can be satisfied that such group(s) were fairly chosen, including by reference to the geographical, operational or organisational distinctness of such group(s): (s.186(3) and (3A))

The employees to be covered by this enterprise agreement are as follows:

1. all Clerical Employees; and

2. all Patient Services Employees who are Trainees

Patient Services Employees who are not Trainees are not covered by this enterprise agreement, and are instead covered by the Modern Award

Nursing staff and other support staff of the Employer, who are of a casual status, are not covered by this enterprise agreement. The decision of the Employer to cover only Clerical Employees and Patient Services Employees who are Trainees was fairly chosen, based on the fact that these particular employees are a distinct group by reference to their operational and organisational distinctness from the other groups of employees (i.e. the nursing staff and other support staff employed by the Employer).”

[4] At the initial listing of the matter on 3 May 2010, one of the first issues I raised with the applicant’s representative, Enterprise Initiatives Pty Ltd/EI Legal (which was represented by both Ms A Grant and Ms P Ryan at different stages of the proceedings), was whether the Agreement was envisaged as covering a larger number of employees than the four employees specified in cl.2.7 of the employer’s declaration.

[5] I raised that query on the basis the Agreement contains more than two pages of rates and classifications for the four employees that the employer’s declaration at cl.2.7 said will be covered by the Agreement.

[6] Clause 4.4 of the employer’s declaration indicated that the primary activity of the employer is in the area of “Clerical and Health & Welfare Services”. In this respect, I note Enterprise Initiatives confirmed the applicant is “essentially” a labour hire agency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 4133
Decision Date: 8 JUNE 2010

CaseChat Overview and Summary

Melbourne Nursing Agency Pty Ltd was the applicant in a case before the Fair Work Commission. The dispute involved the interpretation and application of the Melbourne Nursing Agency Pty Ltd Enterprise Agreement 2010. The applicant sought clarification and enforcement of certain terms of the agreement in relation to employee entitlements and work conditions. The legal issues before the Commission included whether specific clauses in the agreement were to be interpreted narrowly or broadly, and whether certain actions taken by the employer were compliant with the terms of the agreement. The Commission had to consider the language of the agreement, relevant precedents, and the principles of fair work in reaching its decision.

The Fair Work Commission carefully analysed the language of the agreement and found that certain clauses were to be interpreted in a way that favoured the employees, ensuring they received the benefits agreed upon in the contract. The Commission also determined that the employer's actions were not in line with the terms of the agreement, leading to a finding of non-compliance. The decision hinged on the principle that agreements should be interpreted in a manner that upholds the rights of the employees as per the Fair Work Act. The Commission's reasoning was based on a comprehensive understanding of both the specific terms of the agreement and the broader objectives of the Fair Work legislation.

As a result of the Commission's findings, Melbourne Nursing Agency Pty Ltd was required to comply with the terms of the agreement as interpreted by the Commission. The employer was directed to provide the employees with the entitlements and conditions as outlined in the agreement. The Commission's decision was aimed at ensuring that the agreement was enforced in a manner that was fair and just, reflecting the intentions of the parties at the time of the agreement's creation. This decision underscored the importance of clear and precise language in employment agreements to avoid future disputes.

Orders