Mercy Health and Aged Care Central Queensland Limited

[2017] FWCA 2890

[2017] FWCA 2890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mercy Health and Aged Care Central Queensland Limited
(AG2016/6969)

MERCY HEALTH AND AGED CARE CENTRAL QUEENSLAND LIMITED & QNU - NURSING - ENTERPRISE AGREEMENT 2016-2017

Aged care industry
COMMISSIONER GREGORY	MELBOURNE, 25 MAY 2017

Application for approval of the Mercy Health and Aged Care Central Queensland Limited & QNU - Nursing - Enterprise Agreement 2016-2017.

[1] An application has been made for approval of an enterprise agreement known as the Mercy Health and Aged Care Central Queensland Limited & QNU – Nursing – Enterprise Agreement 2016-2017 (the Agreement). The application is made under s.185 of the Fair Work Act 2009 (the Act) by Mercy Health & Aged Care Central Queensland Limited (Mercy Health). It is a single enterprise agreement.

[2] After reviewing the application and the Employer’s F17 Statutory Declaration, together with the terms and conditions contained in the proposed Agreement the Commission sought clarification about various matters. Further issues were also raised by the Australian Nursing & Midwifery Federation and the Queensland Nurses’ Union of Employees, who are Union bargaining representatives for the Agreement.

[3] A telephone conference was subsequently convened on 3 February 2017 with the intention of gaining a better understanding about the matters in dispute, and how the application might be progressed from this point. The Union bargaining representatives raised three issues, in particular, about the application and the terms and conditions contained in the Agreement. They, firstly, sought confirmation that the Agreement had been signed by an appropriate employee representative as required by Regulation 2.06A(2)(a)(ii). The second issue concerned the multi-hire arrangements contained in sub clause 4.5 of the Agreement. The final issue concerned the annual leave provisions contained in sub clause 7.1.2. The conference was concluded on the basis that Mercy Health and the Union representatives would now engage in further discussions with the intention of reaching agreement about undertakings that could respond to the concerns raised.

[4] In responding to the issue that has been raised about whether the Agreement has been signed by a “representative of the employees covered by the Agreement,” as required by Regulation 2.06A(2)(a)(ii), I have had regard to the decision handed down by Commissioner Lee in the matter of MSS Security Pty Ltd and the MSS Security Victorian Enterprise Agreement 2011 [2013] FWCA 1474. Commissioner Lee concluded that the “key consideration” in dealing with the issue of whether the application had been accompanied by a signed copy of the Agreement is whether the employee that signed the Agreement was in the class of employees that would be bound by the Agreement. He also noted that the legislation did not require that the employee signatory be a “bargaining representative.” I am satisfied, based on this decision, that the Commission does have a signed copy of the Agreement that meets the relevant requirements, given that the employee who signed the Agreement was at the time an employee who would be covered by the Agreement, if approved.

[5] Mercy Health has also now provided written undertakings. The Union bargaining representatives have also informed the Commission that they support the terms of these undertakings and believe the Agreement should now be approved. After reviewing the terms of those undertakings I am satisfied that they will not cause financial detriment to any employee to be covered, or result in substantial changes to the Agreement. The undertakings, contained in Annexure “A,” are accordingly accepted and in accordance with s.191 of the Act will now be taken to be a term of the Agreement.

[6] I am otherwise satisfied that each of the requirements of ss.186, 187 and 190, as are relevant to this application for approval, have been met.

[7] The Australian Nursing and Midwifery Federation and the Queensland Nurses’ Union of Employees, each being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers each of these organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 June 2017. The nominal expiry date of the Agreement is 31 July 2017.

COMMISSIONER

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ANNEXURE A