DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ngala Family Services
(AG2016/3912)

NGALA REGISTERED AND ENROLLED NURSES ENTERPRISE AGREEMENT 2016

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 7 SEPTEMBER 2016

Application for approval of the Ngala Registered and Enrolled Nurses Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Ngala Registered and Enrolled Nurses Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ngala Family Services. 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 Australian Nursing and Midwifery 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 September 2016. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Ngala Family Services, a non-profit community organisation providing health, welfare, and education services to Aboriginal and Torres Strait Islander communities in Western Australia. The dispute centred on the application for approval of the Ngala Registered and Enrolled Nurses Enterprise Agreement 2016. The application was brought by the employer, Ngala Family Services, under section 234 of the Fair Work Act 2009. The central legal issues before the court were whether the agreement was a "good faith" agreement and whether it contained the required "additional terms" as stipulated by the Fair Work Act. Specifically, the court had to determine if the agreement genuinely represented the interests of the employees and if it included all mandatory terms prescribed by the Act.

The Fair Work Commission considered the evidence presented by both parties and the context of the negotiations leading to the agreement. The court found that the agreement was not a genuine product of genuine collective bargaining, primarily because the employer had imposed several terms without meaningful negotiation. The court highlighted that the employer had used its dominant position to dictate terms, which undermined the principle of good faith bargaining. Furthermore, the court found that the agreement did not include all the mandatory terms required by the Fair Work Act, including provisions related to minimum rates of pay and penalty rates.

As a result of these findings, the Fair Work Commission rejected the application for approval of the Ngala Registered and Enrolled Nurses Enterprise Agreement 2016. The court emphasised the importance of genuine collective bargaining and compliance with the mandatory terms set out in the Act. The decision underscores the need for employers to engage in meaningful negotiations and ensure that all prescribed terms are included in enterprise agreements.

Ngala Family Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established