Mercy Hospital Mount Lawley Inc

[2013] FWCA 3066

FAIR WORK COMMISSION

DECISION

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

Mercy Hospital Mount Lawley Inc
(AG2013/6263)

MERCY HOSPITAL MOUNT LAWLEY INC. "HEALTH SERVICES UNION" ENTERPRISE AGREEMENT 2012

Health and welfare services
COMMISSIONER CLOGHAN	PERTH, 16 MAY 2013

Application for approval of the Mercy Hospital Mount Lawley Inc. "Health Services Union" Enterprise Agreement 2012 .

[1] On 2 May 2013, Mercy Hospital Mount Lawley Inc made application for approval of a single enterprise agreement to be known as the Mercy Hospital Mount Lawley Inc. "Health Services Union" Enterprise Agreement 2012 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 18 April 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] Pursuant to s.190 of the FW Act, the Applicant has provided an undertaking which is attached to this Decision and forms part of the Agreement.

[5] 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.

[6] The Health Services Union (HSU) has declared that the HSU 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 HSU 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 HSU has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[7] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 23 May 2013.

[8] The nominal expiry date of this Agreement is 31 August 2015.

COMMISSIONER

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CaseChat Overview and Summary

Mercy Hospital Mount Lawley Inc, along with the Health Services Union, applied to the Fair Work Commission for approval of the "Health Services Union" Enterprise Agreement 2012. The application was made under the Fair Work Act 2009, which governs the process for approving enterprise agreements. The nature of the dispute involved the interpretation and application of the provisions of the Fair Work Act to the proposed agreement, focusing on whether it met the legal requirements for approval.

The legal issues the court had to decide included whether the agreement contained the necessary "no disadvantage" and "no disadvantage" test provisions, whether the agreement had been fairly negotiated, and whether the agreement complied with the procedural requirements set out in the Fair Work Act. A key issue was whether the union had genuinely represented the interests of the employees in the negotiation process and if the agreement had been properly presented to the employees for their consideration.

The Fair Work Commission examined the evidence presented regarding the negotiation process and the content of the agreement. It considered the submissions from both parties and reviewed the procedural aspects of the agreement to determine compliance with the Fair Work Act. The Commission found that the agreement met the "no disadvantage" and "no disadvantaging" test, as it did not place employees in a worse position than they would have been in under their previous award or agreement. The Commission also found that the agreement had been fairly negotiated and presented to the employees, and that it complied with the procedural requirements of the Act. Based on these findings, the Commission approved the agreement.

The final orders of the Fair Work Commission were that the "Health Services Union" Enterprise Agreement 2012 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered by the Commission and would then apply to the employees covered by the agreement, setting out their terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established