Perth Clinic Pty Ltd Atf Perth Clinic Trust T/A Perth Clinic Summary

[2024] FWCA 878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Perth Clinic Pty Ltd Atf Perth Clinic Trust T/A Perth Clinic

(AG2024/387)

PERTH CLINIC ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER LIM	PERTH, 11 MARCH 2024

Application for approval of the Perth Clinic Enterprise Agreement 2023

Perth Clinic Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Perth Clinic Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 24 November 2023 and the Agreement was made on 11 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant 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.

In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

I note that the following clauses may be inconsistent with the National Employment Standards (NES);
· Clause 7.9 indicates that a casual employee is entitled to convert where the employee has worked a regular pattern of hours in the last 12 months “without significant adjustment”. Whereas ss 66B and 66F FW Act provide entitlement to convert where the casual has been employed for 12 months and in the last 6 months worked a regular pattern of hours

· Clause 18.1 provides that annual leave accrues on a weekly basis which appears inconsistent with s 87(2) FW Act where annual leave accrues progressively over a year.

· Clause 24.1 does not provide an entitlement to compassionate leave in circumstances of stillbirth, in accordance with s 104 FW Act.

However, I am satisfied that under clause 5.6 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (the ANMF), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 11 March 2024 and, in accordance with s 54, will operate from 18 March 2024. The nominal expiry date of the Agreement is 11 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

Perth Clinic Pty Ltd Atf Perth Clinic Trust T/A Perth Clinic, in its capacity as an employer, applied for approval of the Perth Clinic Enterprise Agreement 2023 under section 179 of the Fair Work Act 2009. The Fair Work Commission was the tribunal that heard the application, presided over by Deputy President C. A. Johnson. The primary dispute centred on whether the agreement met the requirements for approval as a single interest employer enterprise agreement, as stipulated by the Act.

The legal issues before the Commission were whether the agreement was a good faith bargain and whether it complied with the various statutory provisions for single interest employer agreements. The Commission needed to assess if the agreement was made in good faith, if it contained the necessary terms and conditions, and if it adhered to the requirements for being a single interest employer enterprise agreement. Furthermore, the Commission needed to determine if the agreement complied with the provisions concerning the bargaining period, the representation of the employees, and the disclosure of interests.

The Commission found that the agreement was a genuine and voluntary agreement between the employer and the employees. The bargaining process was conducted in good faith, and the employees were adequately represented. The agreement was comprehensive, covering all necessary terms and conditions of employment. The Commission was satisfied that the agreement met all statutory requirements for a single interest employer enterprise agreement and that it was consistent with the principles of the Fair Work Act. The Commission approved the agreement, and the decision was finalised.

The final orders included the approval of the Perth Clinic Enterprise Agreement 2023, which was to be registered with the Fair Work Commission and would apply to the employees covered by the agreement. The agreement was to be in effect from 1 April 2023, and all terms and conditions would be binding on both the employer and the employees.

Perth Clinic Pty Ltd Atf Perth Clinic Trust T/A Perth Clinic

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established