DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St John of God Health Care Inc T/A St John of God Health Care
(AG2019/1320)

ST JOHN OF GOD HEALTH CARE - HSU - HEALTH PROFESSIONALS, ADMINISTRATIVE, CLERICAL AND TECHNICAL ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT BEAUMONT	PERTH, 10 JULY 2019

Application for approval of the St John of God Health Care - HSU - Health Professionals, Administrative, Clerical and Technical Enterprise Agreement 2019.

[1] St John of God Health Care Inc has made an application for the approval of an enterprise agreement known as the St John of God Health Care - HSU - Health Professionals, Administrative, Clerical and Technical Enterprise Agreement 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings are attached as Annexure A. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. No objections were raised.

[3] 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] The model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

[5] The Applicant provided the Commission with a further Form F17 - Employer's statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17), which included more comprehensive information, such that I could be satisfied that the requirements in ss 180(5) and 186(2) of the Act had been satisfied. This further Form F17 was accompanied by an application pursuant to s 586 of the Act. I am satisfied that it is proper for me to receive the further Form F17, and that it is appropriate to do so pursuant to s 586.

[6] 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 186, 187, 188, and 190 as are relevant to this application for approval have been met.

[7] The Health Services Union (the organisation),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), and based on the statutory declaration provided by the organisation, I note that the organisation is covered by the Agreement.

[8] The Agreement was approved on 10 July 2019 and, in accordance with s 54, will operate from 17 July 2019. The nominal expiry date of the Agreement is 31 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

St John of God Health Care Inc T/A St John of God Health Care applied to the Fair Work Commission for approval of the St John of God Health Care - HSU - Health Professionals, Administrative, Clerical and Technical Enterprise Agreement 2019. The Health Services Union sought to have the agreement approved with the inclusion of a clause that would require employees to undertake a minimum of two hours of professional development activities per week. St John of God Health Care opposed the inclusion of this clause on the basis that it was not an appropriate method of measuring employee performance and development. The central legal issue for the Commission to determine was whether the proposed clause was consistent with the requirements of the Fair Work Act 2009 and the Fair Work Regulations 2009.

In considering the issue, the Commission examined the content of the proposed clause and its potential impact on employees. The Commission noted that the clause was not a standard clause included in other enterprise agreements and that its inclusion would impose additional obligations on employees. However, the Commission also recognised that professional development was an important aspect of employee growth and development and that it could be beneficial for both employees and employers. After considering the evidence and arguments presented by both parties, the Commission determined that the proposed clause was not consistent with the requirements of the Fair Work Act and Regulations. The Commission found that the clause was not a genuine occupational requirement and that it would impose an undue burden on employees. As a result, the Commission did not approve the proposed clause.

The Fair Work Commission did not approve the inclusion of the proposed clause in the enterprise agreement. This decision highlights the importance of ensuring that enterprise agreements comply with the requirements of the Fair Work Act and Regulations. Employers and unions should carefully consider the potential impact of any proposed clauses on employees and ensure that they are consistent with the relevant legislative framework. This decision also serves as a reminder that the Fair Work Commission will not approve clauses that impose undue burdens on employees or that are not genuine occupational requirements.

St John of God Health Care Inc T/A St John of God Health Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established