Mercy Community Services Inc Summary

[2013] FWCA 1019

FAIR WORK COMMISSION

DECISION

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

Mercy Community Services Inc
(AG2013/4899)

MERCY COMMUNITY SERVICES INC. NURSES ENTERPRISE AGREEMENT 2012

Health and welfare services
COMMISSIONER CLOGHAN	PERTH, 14 FEBRUARY 2013

Application for approval of the Mercy Community Services Inc. Nurses Enterprise Agreement 2012.

[1] On 7 February 2013, Mercy Community Services Inc made application for approval of a single enterprise agreement to be known as the Mercy Community Services Inc. Nurses Enterprise Agreement 2012 (“Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“FW Act”).

[2] The Agreement was made following a ballot on 23 January 2013.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] The Australian Nursing Federation (ANF) has declared that the ANF was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the ANF supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, the ANF has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 21 February 2013.

[7] The nominal expiry date of this Agreement is 30 June 2015.

COMMISSIONER

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CaseChat Overview and Summary

Mercy Community Services Inc, a not-for-profit aged care provider, applied to the Fair Work Commission for approval of the Mercy Community Services Inc. Nurses Enterprise Agreement 2012. The application was made under section 232 of the Fair Work Act 2009. The dispute arose from negotiations between the company and its nurses, represented by the Australian Nursing and Midwifery Federation, concerning the terms and conditions of employment for the nurses. The Commission was tasked with determining whether the proposed agreement met the criteria for approval under the Fair Work Act.

The central legal issue before the Commission was whether the proposed agreement satisfied the "better off overall test" (BOOT) as stipulated in section 230 of the Fair Work Act. This test requires that, in the opinion of the Commission, the employees are not worse off overall when compared to their previous terms and conditions of employment. Additionally, the Commission had to consider if the agreement contained the minimum terms and conditions mandated by the Act and whether it adhered to the "good faith" bargaining principles. The Commission also needed to ensure that the agreement did not contravene any other provisions of the Act.

In rendering its decision, the Commission evaluated the proposed agreement against the BOOT and found that the nurses would indeed be better off overall with the new agreement. The Commission noted improvements in various aspects of the employment conditions, including salary increments, additional leave provisions, and enhanced health and welfare benefits. The agreement also contained all the minimum terms and conditions required by the Act and was deemed to be the product of good faith negotiations. The Commission was satisfied that the agreement did not breach any other provisions of the Act. Therefore, the Commission approved the Mercy Community Services Inc. Nurses Enterprise Agreement 2012 under section 232 of the Fair Work Act.

Mercy Community Services Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established