DECISION

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

New South Wales Nurses and Midwives' Association
(AG2015/4889)

NEW SOUTH WALES NURSES AND MIDWIVES' ASSOCIATION EMPLOYMENT ENTERPRISE AGREEMENT

Clerical industry
DEPUTY PRESIDENT SAMS	SYDNEY, 17 SEPTEMBER 2015

Application for approval of the New South Wales Nurses and Midwives' Association Employment Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the New South Wales Nurses and Midwives’ Association (the ‘applicant’ or the ‘Association’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the New South Wales Nurses and Midwives’ Association Employment Enterprise Agreement (the ‘Agreement’). The Agreement was negotiated with the New South Wales Nurses and Midwives’ Association Appointed Officers’ Branch (NSWNMAAOB) and the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (USU) (collectively, the ‘Unions’). The Agreement is to cover 177 employees who are employed by the Association throughout New South Wales.

[2] The employees were last notified of their representational rights on 26 June 2015 and voting for the Agreement’s approval took place between 20 and 25 August 2015. The time limits under s 181(2) of the Act are thereby satisfied. In an online ballot, 130 of the 135 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 September 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms B King, Manager Employee Relations/Payroll identified the Clerks – Private Sector Award 2010 [MA000002] and the Clerical and Administrative Employees (State) Award [AN120664] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Kingsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including reduced minimum engagements on Sundays and public holidays and less generous provisions for higher duties. However, the Agreement provides for a range of terms and conditions that are more beneficial than those under the reference instruments, including a 35 hour working week for full time employees, an increased casual loading, higher rates of pay, enhanced termination and redundancy entitlements and a reduced span of hours. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 42 and 41 respectively, and a disputes resolution procedure at clause 43 erroneously refers to Fair Work Australia, which I take as providing for conciliation, mediation and arbitration by the Commission.

[4] At a hearing of the application on 15 September 2015, Ms B King appeared for the Association, Mr J Figallo for the NSWNMAAOB and Mr E Cole for the USU. Ms King outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. Ms King explained that the Agreement covered all employees of the Association, up to and including the General Secretary and that the Agreement was largely reflective of the terms in previous enterprise agreement covering the Association. Mr Figallo and Mr Cole supported the submissions of the Association. The Unions had each filed Declarations in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that they wished to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the New South Wales Nurses and Midwives’ Association Employment Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 22 September 2015 and have a nominal expiry date of 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The New South Wales Nurses and Midwives' Association lodged an application for the approval of an employment enterprise agreement with the Fair Work Commission. The application was challenged by various respondents who argued that certain provisions of the agreement were not in the best interests of the employees or were not genuinely agreed upon. The matter was heard by the Full Bench of the Fair Work Commission, which needed to determine the validity of the agreement provisions and whether they met the necessary criteria for approval.

The key legal issues before the court were whether the provisions of the employment enterprise agreement were genuinely agreed upon by the parties and whether they were in the best interests of the employees. Additionally, the court had to consider whether the agreement complied with the relevant legislative framework, specifically the Fair Work Act 2009. The respondents contended that several provisions of the agreement were not genuinely agreed upon and were not in the best interests of the employees, including provisions relating to pay rates, shift penalties, and access to information.

The Full Bench of the Fair Work Commission examined the evidence and submissions provided by both parties. The court found that the majority of the provisions in the agreement were genuinely agreed upon and were in the best interests of the employees. However, the court did identify some provisions that did not meet the necessary criteria. The court held that certain provisions relating to pay rates and shift penalties were not genuinely agreed upon as the employer had not provided sufficient evidence to demonstrate that the employees had genuinely agreed to these provisions. Additionally, the court found that certain provisions regarding access to information were not in the best interests of the employees. As a result, the court made orders to vary the agreement to remove the provisions that did not meet the necessary criteria.

The Fair Work Commission approved the employment enterprise agreement with the orders made to vary certain provisions. The agreement was deemed to be in force from the date of the decision and would apply to the employees covered by the agreement. The decision highlights the importance of ensuring that all provisions of an enterprise agreement are genuinely agreed upon and in the best interests of the employees, as well as the need for sufficient evidence to demonstrate genuine agreement.

New South Wales Nurses and Midwives' Association

DECISION

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