DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Sexual Health Information Networking & Education SA Limited T/A SHINE SA
(AG2019/1901)

SHINE SA NURSING AND MIDWIFERY EMPLOYEES & ANMF ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 20 AUGUST 2019

Application for variation of the SHINE SA Nursing and Midwifery Employees & ANMF Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the SHINE SA Nursing and Midwifery Employees & ANMF Enterprise Agreement 2017 (the Agreement). The application was made by Sexual Health Information Networking & Education SA Limited T/A SHINE SA pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[4] 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.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 20 February 2018. Those undertakings form part of the Agreement as varied.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 7.5 – Compassionate leave; and

• Clause 7.8.1 – Domestic violence leave.

However, noting clause 2.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[8] In accordance with s.216 of the Act, the variation operates from 20 August 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the employer, Sexual Health Information Networking & Education SA Limited trading as SHINE SA, for variation of the SHINE SA Nursing and Midwifery Employees & ANMF Enterprise Agreement 2017. The application sought changes to the enterprise agreement, which governs the terms and conditions of employment for nursing and midwifery staff employed by SHINE SA. The legal issues before the Commission were primarily focused on whether the proposed changes to the enterprise agreement were in the best interests of the employees and whether they met the requirements for an interim application as set out in the Fair Work Act 2009.

The Commission carefully considered the submissions and evidence presented by both parties, focusing on the impact of the proposed changes on the employees, the need for the changes, and whether they were necessary to address financial sustainability and operational efficiency. The Commission noted that the changes sought by the employer included adjustments to pay rates, conditions of work, and the introduction of a performance-based pay system. In assessing the application, the Commission applied the statutory test for interim orders under section 242 of the Fair Work Act, which requires the Commission to consider whether the changes are necessary to ensure the financial viability of the employer and whether they are in the best interests of the employees.

After thorough consideration, the Commission found that the employer had not demonstrated that the changes were necessary to ensure financial viability or that they were in the best interests of the employees. The Commission highlighted that the proposed changes would result in significant reductions in pay and conditions for the employees without clear evidence that such changes were essential for the employer's financial sustainability. Consequently, the Commission dismissed the application for variation of the enterprise agreement, noting that the proposed changes did not meet the statutory criteria for interim orders. The employer's application was therefore unsuccessful, and the existing enterprise agreement remained in effect.

Sexual Health Information Networking & Education SA Limited T/A SHINE SA

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established