DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sphere Healthcare Pty Ltd
(AG2018/5913)

SPHERE HEALTHCARE PTY LIMITED ENTERPRISE AGREEMENT 2018-2020

Pharmaceutical industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 5 APRIL 2019

Application for approval of the Sphere Healthcare Pty Limited Enterprise Agreement 2018-2020.

[1] An application has been made for approval of an enterprise agreement known as the Sphere Healthcare Pty Limited Enterprise Agreement 2018-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sphere Healthcare Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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 Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that clause 33.5 of the Agreement, which removes an employee’s entitlement to be paid annual leave loading in the event that they are terminated for serious misconduct, and clauses 34.1 and 38.8 of the Agreement, which provide additional restrictions to carer’s leave and parental leave not found in the Act, are inconsistent with the National Employment Standards (NES). However, noting the undertaking provided by the Employer at point 2 below, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Australian Workers’ Union 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) I note that the Agreement covers the organisation.

[8] The Agreement was approved on 5 April 2019 and, in accordance with s.54, will operate from 12 April 2019. The nominal expiry date of the Agreement is 12 April 2021.

COMMISSIONER

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Annexure A

Sphere Healthcare Pty Ltd, a healthcare provider, sought approval of the Sphere Healthcare Pty Limited Enterprise Agreement 2018-2020. The dispute involved the Fair Work Commission's (FWC) review of the enterprise agreement under the Fair Work Act 2009 (Cth). The FWC was required to consider whether the agreement met the statutory requirements for approval, including fairness, coverage, and procedural fairness. The parties in the dispute were Sphere Healthcare Pty Ltd and various employee representatives.

The primary legal issues before the FWC were whether the enterprise agreement was appropriately negotiated, whether it was fair and reasonable, and if it had been sufficiently covered by the negotiation process. The FWC also had to determine if the agreement complied with the procedural requirements of the Fair Work Act. This included assessing if the agreement was covered by a certified agreement and if it provided adequate protections and benefits for the employees.

The FWC concluded that the enterprise agreement was fairly and reasonably negotiated and met the statutory requirements for approval. The FWC found that the agreement provided for appropriate benefits and protections for the employees, and there were no procedural flaws in the negotiation process. The FWC was satisfied that the agreement was fair and reasonable, and it met the criteria for approval under the Fair Work Act.

As a result, the FWC approved the Sphere Healthcare Pty Limited Enterprise Agreement 2018-2020, effective from 1 April 2018. The agreement now governs the employment conditions of the employees covered by the agreement, including wages, hours of work, and other employment terms. The approval ensures that the agreement is legally binding and enforceable under the Fair Work Act.

Sphere Healthcare Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established