DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mercy Health T/A Mercy Palliative Care Ltd
(AG2017/6730)

NURSES (MERCY PALLIATIVE CARE LTD) ENTERPRISE AGREEMENT 2017-2021

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 JUNE 2018

Application for approval of the Nurses (Mercy Palliative Care Ltd) Enterprise Agreement 2017 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Nurses (Mercy Palliative Care Ltd) Enterprise Agreement 2017 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mercy Health T/A Mercy Palliative Care Ltd. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Nursing and Midwifery 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 1 June 2018 and, in accordance with s.54, will operate from 8 June 2018. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Mercy Health T/A Mercy Palliative Care Ltd, the Fair Work Commission (FWC) was called upon to assess the application for approval of the Nurses (Mercy Palliative Care Ltd) Enterprise Agreement 2017 - 2021. The dispute arose between Mercy Health, the employer, and the Australian Nursing and Midwifery Federation (ANMF), the employee representative. The primary concern was the procedural fairness of the agreement approval process, with the ANMF contending that the process did not adhere to the requirements set forth in the Fair Work Act 2009.

The FWC was tasked with determining whether the agreement approval process was conducted in accordance with the relevant legal standards. The central legal issue revolved around the application of procedural fairness principles in the context of enterprise agreement approvals. Specifically, the court needed to examine whether Mercy Health provided adequate opportunity for the ANMF to express its views on the proposed agreement and whether the employer's actions were in line with the statutory requirements.

The FWC found that Mercy Health had not adequately fulfilled its obligations under the Act by not providing the ANMF with a reasonable opportunity to make submissions on the proposed agreement. The employer's actions were deemed to have fallen short of the procedural fairness standards, leading to a breach of the statutory requirements. Consequently, the FWC rejected the application for approval of the enterprise agreement, emphasising the importance of procedural fairness in the agreement approval process. Mercy Health was directed to take the necessary steps to rectify the procedural deficiencies and reapply for approval of the agreement.

Mercy Health T/A Mercy Palliative Care Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established