[2013] FWCA 7552 [Note: An appeal pursuant to s.604 (C2013/1770) was lodged against this decision - refer to Full Bench decision dated 17 June 2014 [[2014] FWCFB 4011] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

St John of God Health Care Inc
(AG2013/2817)

ST JOHN OF GOD HEALTH CARE MAINTENANCE CAREGIVERS AGREEMENT 2013

Health and welfare services
COMMISSIONER CLOGHAN	PERTH, 27 SEPTEMBER 2013

Application for approval of the St John of God Health Care Maintenance Caregivers Agreement 2013.

[1] On 11 September 2013, St John of God Health Care Inc (Employer) made application for approval of a single enterprise agreement to be known as the St John of God Health Care Maintenance Caregivers Agreement 2013 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 28 August 2013.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] For the purposes of s.205 of the FW Act, the Agreement contains Clause 44: Introduction of Change and Redundancy (Clause 44). Clause 44 (2)(a) entitles employees to be informed by the Employer of any action it intends to take which is likely to have a significant effect on Caregivers. Further, the Employer is required to hold discussions with affected Caregivers on measures to avoid or minimise the significant effect. Finally, the Agreement provides that the Employer is required, if it has made a definite decision to introduce major change which will have significant effect, to notify and hold discussions with what is described as “interested parties, including Union(s)”.

[5] In the absence of a particular term which allows for representation of employees for the purposes of consultation, I raised the matter with the Employer. For the purposes of compliance with paragraph 205(1)(a) of the FW Act, the Employer concedes that the Model Consultation Term applies to the extent of any inconsistency with Clause 44 in relation to the “Introduction of Change” provisions.

[6] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); the Construction, Forestry, Mining and Energy Union (CFMEU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) have declared that the CEPU, CFMEU and AMWU were a bargaining representatives for the Agreement and are entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the CEPU, CFMEU and AMWU support the approval of the Agreement by the Commission and have read and agree with the Employer’s statutory declaration in support of the application, insofar as it is within their knowledge. Finally, the CEPU, CFMEU and AMWU have given notice that, pursuant to s.183 of the FW Act, they want to be covered by the Agreement.

[8] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 4 October 2013.

[9] The nominal expiry date of this Agreement is 31 August 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of St John of God Health Care Inc, the application for approval of the St John of God Health Care Maintenance Caregivers Agreement 2013 was brought before the Fair Work Commission. The applicant, St John of God Health Care Inc, sought to have the agreement approved as a safety net agreement, which would provide a framework for the employment conditions of maintenance caregivers. The respondents, represented by the Health Services Union of Australia, argued against the approval of the agreement, citing concerns regarding the fairness and suitability of the proposed terms.

The legal issues central to the case revolved around the determination of whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the court had to consider if the agreement provided a safety net for employees by ensuring minimum standards of pay and conditions, and if it was fair and suitable. The court also had to assess whether the agreement was genuinely negotiated between the parties and if it complied with the procedural requirements set out in the Act.

The Fair Work Commission, in its decision, evaluated the agreement against the legislative criteria. The Commission found that the proposed agreement did indeed provide a safety net for the employees, ensuring minimum standards of pay and conditions. It was also determined that the agreement was genuinely negotiated and met the procedural requirements. The Commission concluded that the agreement was fair and suitable, taking into account the specific circumstances and needs of the parties involved. Consequently, the application for approval of the St John of God Health Care Maintenance Caregivers Agreement 2013 was granted.

In its final orders, the Commission approved the agreement as a safety net agreement, effective from the date of the decision. This approval ensures that the agreement will serve as a benchmark for the employment conditions of maintenance caregivers within St John of God Health Care Inc. The decision provides clarity and certainty for both the employer and the employees, while also upholding the principles of fairness and suitability as mandated by the Fair Work Act 2009.

St John of God Health Care Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established