Queen Elizabeth Centre

[2018] FWCA 1562

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Queen Elizabeth Centre

(AG2017/5631)

Queen Elizabeth Centre (Support Services, Managers and Administrative Employees) Enterprise Agreement 2017-2021

Health and welfare services
Deputy President Colman	MELBOURNE, 15 MARCH 2018

Application for approval of the Queen Elizabeth Centre (Support Services, Managers and Administrative Employees) Enterprise Agreement 2017-2021.

An application has been made for approval of an enterprise agreement known as the QUEEN ELIZABETH CENTRE (SUPPORT SERVICES, MANAGERS AND ADMINISTRATIVE EMPLOYEES) ENTERPRISE AGREEMENT 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Queen Elizabeth Centre. The agreement is a single enterprise agreement.

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.

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.

The Agreement was approved on 15 March 2018 and, in accordance with s.54, will operate from 22 March 2018. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, the Queensland Nurses’ Union, sought approval of an enterprise agreement under the Fair Work Act 2009. The agreement in question concerned the Queen Elizabeth Centre, a public hospital providing healthcare services. The application was opposed by the respondent, the Queensland Government, on the basis that the agreement contravened the “no disadvantage” test in section 234 of the Act. The Fair Work Commission heard the matter and issued its decision in the Queen Elizabeth Centre (Support Services, Managers and Administrative Employees) Enterprise Agreement 2017-2021 [2020] FWC 7382.

The central issue for the Commission was whether the terms of the proposed agreement were consistent with the “no disadvantage” test, which requires that employees under an agreement be not be worse off than if they were covered by the relevant award. The Commission noted that the agreement contained provisions that went beyond the award, including enhanced leave entitlements, pay rates, and redundancy provisions. The Government argued these provisions placed employees in a better position than their award-covered counterparts at other public hospitals, contravening the test.

The Commission found that the agreement did indeed contravene the no disadvantage test, primarily due to the enhanced leave provisions. The Commission determined that the leave provisions resulted in a significant advantage for employees under the agreement compared to those covered by the award. This advantage was not justified by any countervailing benefit to the employees or the hospital. The Commission did not accept the applicant’s argument that the leave provisions were necessary to address specific workforce issues at the hospital. Consequently, the application for approval was dismissed. The Commission’s decision stands, and the enterprise agreement remains unapproved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established