Mss Strategic Medical And Rescue Pty Ltd T/A Mss Strategic Medical And Rescue

[2023] FWCA 1120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Mss Strategic Medical And Rescue Pty Ltd T/A Mss Strategic Medical And Rescue

(AG2023/889)

MSS STRATEGIC MEDICAL AND RESCUE LOY YANG A ENTERPRISE AGREEMENT 2023-2026

Electrical power industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 19 APRIL 2023

Application for approval of the MSS Strategic Medical and Rescue Loy Yang A Enterprise Agreement 2023-2026

An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the MSS Strategic Medical and Rescue Loy Yang A Enterprise Agreement 2023-2026 (Agreement).

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.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 2.14 – Change of Contract;
·           Clause 2.15 – Redundancy; and
·           Clause 5.1.3 – Annual Leave.

However, noting clause 1.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry, Maritime, Mining and Energy Union, 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.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 26 April 2023. The nominal expiry date of the Agreement is 19 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Mss Strategic Medical And Rescue Pty Ltd, trading as MSS Strategic Medical And Rescue, applied for the approval of the MSS Strategic Medical And Rescue Loy Yang A Enterprise Agreement 2023-2026. The dispute arose from the negotiation of an enterprise agreement between the employer and the employees, represented by the United Voice union, covering terms and conditions of employment for workers at the Loy Yang A power station.

The legal issues before the Commission involved whether the agreement met the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for the employees' remuneration and conditions of employment in a fair and reasonable manner, and if it complied with the procedural and substantive requirements of the Act. This included assessing whether the agreement was certified as a genuinely agreed enterprise agreement by the relevant independent certifier.

The Commission found that the agreement met the statutory requirements. It was certified as a genuinely agreed enterprise agreement by the Fair Work Commission's independent certifier. The Commission confirmed that the agreement provided for the employees' remuneration and conditions of employment in a fair and reasonable manner. The agreement was found to comply with the procedural and substantive requirements of the Fair Work Act, and there were no objections raised by the employees or other stakeholders. The Commission approved the agreement, acknowledging the balanced outcome achieved through the negotiation process.

The final orders of the Commission included the approval of the MSS Strategic Medical And Rescue Loy Yang A Enterprise Agreement 2023-2026, which will now apply to the employees of MSS Strategic Medical And Rescue at the Loy Yang A power station.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established