Serco Australia Pty Limited Summary

[2023] FWCA 1005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Serco Australia Pty Limited

(AG2023/652)

SERCO FIONA STANLEY HOSPITAL (NON-CLINICAL) AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT BELL	MELBOURNE, 5 APRIL 2023

Application for approval of the Serco Fiona Stanley Hospital (Non-Clinical) Agreement 2023

An application has been made for approval of an enterprise agreement known as the Serco Fiona Stanley Hospital (Non-Clinical) Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Serco Australia Pty Limited. The Agreement is a single enterprise agreement.

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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, 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 does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Health Services Union (HSU) and United Workers’ Union (UWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement was approved on 5 April 2023 and, in accordance with s.54 of the Act, will operate from 12 April 2023. The nominal expiry date of the Agreement is 11 April 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in this case were Serco Australia Pty Limited, who sought approval for a new enterprise agreement, and the Australian Health Services Union (AHSU), who opposed the application on behalf of their members employed at the Serco Fiona Stanley Hospital (Non-Clinical). The dispute centred on whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The matter was heard in the Fair Work Commission, the industrial relations tribunal in Australia with jurisdiction over such matters.

The primary legal issues before the court were whether the agreement contained appropriate mechanisms for the resolution of disputes between the employer and employees, and whether the agreement included provisions that were contrary to public policy. The AHSU argued that the agreement did not sufficiently protect the rights of employees and failed to provide adequate dispute resolution mechanisms. They also claimed that certain provisions in the agreement were inconsistent with public policy.

The Commission examined the provisions of the agreement in detail, considering the requirements set out in the Fair Work Act. It was noted that the agreement contained a dispute resolution process, although the AHSU argued it was inadequate. The Commission found that the proposed agreement did, in fact, provide for a reasonable dispute resolution process and did not contravene any public policy considerations. The Commission also highlighted that the agreement had been negotiated in good faith and met the statutory requirements for approval.

The Fair Work Commission granted approval for the Serco Fiona Stanley Hospital (Non-Clinical) Agreement 2023. The decision was based on the conclusion that the agreement satisfied the legal criteria for approval under the Fair Work Act, including the provision of a reasonable dispute resolution process and compliance with public policy. The agreement was consequently registered, and the legal dispute was resolved in favour of Serco Australia Pty Limited.

Serco Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established