St John Ambulance Australia SA Inc T/A St John Ambulance Australia SA Inc

[2019] FWCA 3421

[2019] FWCA 3421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 185 - Application for approval of a single-enterprise agreement

St John Ambulance Australia SA Inc T/A St John Ambulance Australia SA Inc
(AG2018/6647)

ST JOHN AMBULANCE AUSTRALIA SA INC. EMPLOYEES ENTERPRISE AGREEMENT 2018

Social, community, home care and disability services
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 17 MAY 2019

Application for approval of the St John Ambulance Australia SA Inc. Employees Enterprise Agreement 2018

[1] On 15 November 2018 an agreement known as the St John Ambulance Australia SA Inc. Employees Enterprise Agreement 2018 (the Agreement) was made.

[2] On 28 November 2018 St John Ambulance Australia SA Inc (the employer) made an application to the Fair Work Commission (the Commission) under section 185 of the Fair Work Act2009 (the FW Act) for approval of the Agreement. The Agreement is a single-enterprise agreement. It is proposed to replace the St John Ambulance Australia SA Inc Employees Enterprise Agreement 2015 which has passed its nominal expiry date.

[3] The Australian Services Union (ASU) is not a bargaining representative for the Agreement but is representing certain employees in proceedings for its approval. A Form F18 statutory declaration of Abbie Spencer in relation to the application for approval of the Agreement was received from the ASU on 13 March 2019.

[4] I conducted conferences on the application for approval on 27 March 2019, 8 April 2019 and 2 May 2019.

[5] On 3 April 2019 I wrote to parties by email to raise issues which I considered may impact on the approval of the Agreement.

[6] On 1 May 2019 the employer provided the Commission with written submissions and draft undertakings in response to the issues raised. The employer also provided a document titled “Amendment of Slips” which it says is a schedule of typographical amendments to be made to the agreement.

[7] I issued Directions on the application on 3 May 2019 setting the matter down for hearing.

[8] The employer provided the Commission with a copy of the proposed enterprise agreement, with amendments referred to in the “Amendment of Slips”, on 9 May 2019 and a copy of signed undertakings dated 16 May 2019.

[9] On 17 May 2019, I conducted a hearing on the application at which time I heard from Mr Peter Healey, of Cowell Clarke (with permission), and Mr Stephen (Bruce) Trestrail, on behalf of the employer, and Mr Scott Cowen on behalf of the ASU. No employee bargaining representatives appeared at the hearing notwithstanding notice having been provided.

[10] The employer proposed at the hearing of this matter that the Agreement be approved with undertakings under section 190 of the FW Act. The employer also proposed that the Commission vary the Agreement to correct a number of typographical errors.

[11] Sections 190(3), (4) and (5) of the FW Act provide as follows:

“Undertakings 

(3)  The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
   (a)  cause financial detriment to any employee covered by the agreement; or
   (b)  result in substantial changes to the agreement.
FWC must seek views of bargaining representatives
             (4)  The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.
Signature requirements
             (5)  The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

[12] The undertakings submitted by the employer are made under section 190 of the FW Act. A copy of the undertaking is attached as Annexure A.

[13] I accept the written undertaking of 16 May 2019 under section 190(3) of the FW Act. I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee nor result in substantial changes to the Agreement. As a result, the undertaking is taken to be a term of the Agreement.

[14] I further note a number of typographical amendments have been made to the agreement as per the schedule of “Amendments of Slips”. These amendments are purely technical in nature and I correct the document in accordance with the reprinted version supplied to me using my powers of correction under section 586 of the FW Act. 1

[15] I have considered the evidence and submissions before me including the matters raised in my email of 3 April 2019 and responses thereto. On the basis of the material contained in the application, the statutory declaration of Stephen (Bruce) Trestrail dated 28 November 2018, the submissions provided by the employer and the undertakings attached as Annexure A, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met.

[16] The Agreement is approved and, in accordance with section 54 of the FW Act, will operate from 7 days from this date of approval, that is, from 24 May 2019. The nominal expiry date is 24 May 2022.

DEPUTY PRESIDENT

Annexure A

 1   CFMMEU v Griffiths Cranes Pty Ltd[2019] FWCFB 1717 at [54]

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