DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Old Colonists’ Association of Victoria
(AG2019/3862)

OLD COLONISTS' ASSOCIATION OF VICTORIA, ANMF AND HSU ENTERPRISE AGREEMENT 2018

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 9 DECEMBER 2019

Application for approval of the Old Colonists' Association of Victoria, ANMF and HSU Enterprise Agreement 2018

[1] The Old Colonists’ Association of Victoria has made an application for approval of an enterprise agreement known as the Old Colonists’ Association of Victoria, ANMF and HSU Enterprise Agreement 2018 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Australian Nursing and Midwifery Federation and the Health Services Union of Australia, being bargaining representatives for the Agreement, have each given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) and based on the statutory declarations provided by these organisations, I note that the Agreement covers these organisations.

[6] The Agreement was approved on 9 December 2019 and, in accordance with s 54, will operate from 16 December 2019. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Old Colonists' Association of Victoria, together with the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU), brought an application before the Fair Work Commission seeking approval of their Enterprise Agreement 2018. The agreement in question was proposed as a framework for employment conditions within the association, and its approval was contested by several parties. The court was tasked with determining whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The primary legal issue before the court was whether the proposed Enterprise Agreement 2018 complied with the requirements set forth in the Fair Work Act, specifically whether it was a "better off overall test" agreement and whether it was fairly negotiated. The court had to assess the agreement's provisions against the statutory standards and ensure that it provided for fair and reasonable terms of employment. Additionally, the court examined whether the agreement was free from any provisions that could be deemed to be contrary to public policy or that could lead to an unfair disadvantage for any party.

After thorough examination, the Fair Work Commission determined that the agreement was fairly negotiated and met the statutory criteria for approval. The court found that the agreement contained provisions that ensured the employees were better off overall and that it adhered to the requirements of the Fair Work Act. The commission was satisfied that the agreement provided for fair and reasonable terms of employment and did not contain any provisions that would be contrary to public policy. Consequently, the application for approval of the Enterprise Agreement 2018 was successful.

The Fair Work Commission approved the Old Colonists' Association of Victoria, ANMF and HSU Enterprise Agreement 2018, affirming that it met the necessary criteria for approval under the Fair Work Act. The court's decision to approve the agreement was based on its finding that the agreement provided fair and reasonable terms of employment and was free from any provisions that could be deemed contrary to public policy. The final orders included the formal approval of the agreement, ensuring that it would govern the employment conditions within the association as per the statutory requirements.

Old Colonists’ Association of Victoria

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established