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[2013] FWCA 2854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mercy Health
(AG2013/6228)

NURSES (MERCY HOSPICE INCORPORATED) ENTERPRISE AGREEMENT 2012-2016

Health and welfare services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 8 MAY 2013

Application for approval of the Nurses (Mercy Hospice Incorporated) Enterprise Agreement 2012-2016.

[1] An application has been made for approval of an enterprise agreement known as the Nurses (Mercy Hospice Incorporated) Enterprise Agreement 2012-2016 (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. The agreement is a single enterprise agreement.

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

[3] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] The Agreement is approved and, in accordance with s.54, will operate from 15 May 2013. The nominal expiry date of the Agreement is 31 October 2016.

[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 the organisation.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Mercy Health sought approval for the Nurses (Mercy Hospice Incorporated) Enterprise Agreement 2012-2016. The primary dispute involved the interpretation and application of the Fair Work Act 2009, specifically regarding the fairness of the proposed agreement and whether it met the criteria for being considered a lawful enterprise agreement.

The court was tasked with determining whether the agreement complied with the procedural requirements outlined in the Act and whether it was substantively fair. This included assessing whether the agreement was genuinely negotiated and whether it contained terms that were not detrimental to the employees. The court also had to consider if the agreement was consistent with the provisions of the National Employment Standards and if it provided adequate protections and benefits to the employees.

The Fair Work Commission found that the agreement was procedurally sound, having been negotiated in good faith and following the necessary processes. It was determined that the agreement contained terms that were not worse off than those provided by the relevant industrial instrument and met the criteria for substantive fairness. The agreement was deemed to provide adequate protections and benefits to the employees, including provisions for leave entitlements, shift penalties, and other conditions of employment.

Consequently, the Fair Work Commission approved the Nurses (Mercy Hospice Incorporated) Enterprise Agreement 2012-2016. The decision was based on the finding that the agreement was a genuine enterprise agreement that met the statutory requirements and provided fair terms and conditions for the employees involved.

Mercy Health

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Background to the litigation

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