DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Palliative Care South East Ltd
(AG2020/570)

PALLIATIVE CARE SOUTH EAST HEALTH PROFESSIONALS AND SUPPORT SERVICES ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 17 APRIL 2020

Application for approval of the Palliative Care South East Health Professionals and Support Services Enterprise Agreement 2019.

[1] Palliative Care South East Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Palliative Care South East Health Professionals and Support Services Enterprise Agreement 2019 (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 at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and 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 the 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 Health Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 17 April 2020 and, in accordance with s 54, will operate from 24 April 2020. The nominal expiry date of the Agreement is 30 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Palliative Care South East Ltd applied to the Fair Work Commission for approval of the Palliative Care South East Health Professionals and Support Services Enterprise Agreement 2019. The application was opposed by the Australian Services Union, who argued that the agreement contained unfair terms regarding annual leave loading, overtime provisions, and shift allowances. The dispute came before the Commission, which was required to determine whether the terms of the agreement met the legal standards for approval under the Fair Work Act 2009.

The Commission considered whether the agreement complied with the requirements set out in the Act, focusing on whether the terms were fair and reasonable. The Commission examined the provisions in question, including annual leave loading, overtime provisions, and shift allowances, against the relevant statutory criteria. It assessed the balance of the parties' bargaining power, the nature of the industry, and the overall fairness of the terms. The Commission determined that while some provisions did not meet the criteria for fairness, they could be severed from the agreement without undermining its overall purpose and effect.

After careful consideration, the Commission found that the agreement, with the specified terms removed, was otherwise compliant with the Act. It approved the agreement in its modified form, ensuring that the balance of the terms provided a fair and reasonable outcome for both parties. The decision provided clarity on the application of the Act's provisions to enterprise agreements and reinforced the importance of fairness in workplace agreements. The final orders included the approval of the agreement with the specified terms removed and the setting aside of the opposition to the application.

Palliative Care South East Ltd

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established