National Mental Health Commission Summary

[2024] FWCA 1307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

National Mental Health Commission

(AG2024/979)

NATIONAL MENTAL HEALTH COMMISSION ENTERPRISE

Agreement 2024-2027

Commonwealth employment
COMMISSIONER PLATT	ADELAIDE, 11 APRIL 2024

Application for approval of the National Mental Health Commission Enterprise Agreement 2024 -2027

An application has been made for approval of an enterprise agreement known as the National Mental Health Commission Enterprise Agreement 2024 -2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the National Mental Health Commission (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 3 April 2024.

On 4 April 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Agreement contains a number of changes which when considered in isolation, are less advantageous than the Award. These include increased ordinary hours, an expanded spread of hours and some penalty rates. I note that the Agreement also confers benefits of universal application including paid leave between Christmas and New Year and increased Superannuation Contributions. I have not considered additional benefits which were conditional in their application and/or difficult to quantify in monetary terms. I find that the universal improvements offset the disadvantages referred to.

The Applicant has submitted an undertaking in the required form dated 9 April 2024, a copy of which is attached to this Agreement. The undertaking deals with the following topics:

· The definition of a shift worker has been inserted and will also be for the purposes of the National Employment Standards (NES).

· A Part-time minimum engagement has been inserted, consistent with the Australian Public Service Enterprise Award 2015.

· The requirement to prescribe the agreed part time hours of working including the start and finish times so as to determine when overtime is payable has been inserted, consistent with the Australian Public Service Enterprise Award 2015.
· Higher duties allowance will be paid to employees (APS1 – APS6) after half a day where they occupy a role at a classification level higher than their substantive classification level consistent with the Australian Public Service Enterprise Award 2015.

· Higher duties allowance will be paid to (EL1 or above) after one week where they occupy a role at a classification level higher than their substantive classification level.

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

The Community and Public Sector 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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 28 February 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application by the National Mental Health Commission for the approval of the National Mental Health Commission Enterprise Agreement 2024-2027. This agreement was proposed to regulate the terms and conditions of employment for employees of the Commission, including aspects such as wages, hours of work, and other employment-related matters. The application was made under the Fair Work Act 2009, and it was the responsibility of the Fair Work Commission to assess whether the proposed agreement met the necessary criteria for approval.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements set forth in the Fair Work Act. This included examining whether the agreement provided for minimum rates of pay and conditions, whether it was free from prohibited content, and if it had been made in good faith. Additionally, the Commission had to consider whether the agreement provided for proper mechanisms for dispute resolution and whether it aligned with the overarching objectives of the Act, which include promoting high levels of employment, economic efficiency, and social inclusion.

In delivering its decision, the Fair Work Commission carefully reviewed the provisions of the proposed agreement against the statutory framework. The Commission found that the agreement satisfied the requirements of the Fair Work Act, including the provision of minimum rates of pay, conditions, and the absence of prohibited content. Furthermore, the Commission was satisfied that the agreement had been made in good faith and that it included appropriate mechanisms for dispute resolution. Consequently, the Commission approved the National Mental Health Commission Enterprise Agreement 2024-2027, acknowledging its compliance with the legislative standards.

The Commission’s approval of the agreement was formalised through an order that the National Mental Health Commission Enterprise Agreement 2024-2027 be approved as a registered agreement under the Fair Work Act. This decision ensured that the terms and conditions of employment for the Commission's employees would be governed by the approved agreement, providing clarity and certainty for both the employer and the employees.

National Mental Health Commission

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established