[2019] FWCA 939

The attached document replaces the document previously issued with the above code on 13 February 2019.

Amended typographical error in the main title has been amended.

Associate to Deputy President Masson

Dated 14 February 2019

[2019] FWCA 939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St John of God Health Care Inc T/A St John of God Health Care
(AG2018/5951)

THE ST JOHN OF GOD HEALTH CARE (VIC HOSPITALS) ALLIED HEALTH PROFESSIONALS ENTERPRISE AGREEMENT 2018 - 2021

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 13 FEBRUARY 2019

Application for approval of the St John of God Health Care (Vic Hospitals) Allied Health Professionals Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the St John of God Health Care (Vic Hospitals) Allied Health Professionals Enterprise Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by St John of God Health Care Inc T/A St John of God Health Care. 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.

[4] I note that Clauses 26 and 27 are inconsistent with the National Employment Standards in relation to entitlement to public holidays not worked and entitlement to personal leave. Given the National Employment Standards precedence clause at clause 8 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Health Services Union of Australia 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2019. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

St John of God Health Care Inc, trading as St John of God Health Care, sought approval of the St John of God Health Care (Vic Hospitals) Allied Health Professionals Enterprise Agreement 2018 - 2021. The matter was heard in the Fair Work Commission, where the respondents, the Australian Health Services Union (the Union), argued that the agreement should not be approved due to alleged procedural unfairness and lack of genuine agreement. The Union claimed that the agreement was not genuinely negotiated and that the employer failed to provide necessary information to the Union during the negotiation process.

The primary legal issue before the Commission was whether the agreement was genuinely negotiated and concluded in good faith, as required by the Fair Work Act. The Union argued that the employer did not provide the Union with information regarding the health services provided by allied health professionals, the outcomes of a skills audit, or the proposed changes to the roles of allied health professionals. The employer argued that it had provided all necessary information and that the Union had sufficient opportunity to review and respond to the proposed agreement. The Commission had to determine whether the employer's actions amounted to a failure to bargain in good faith and whether the agreement was genuinely negotiated.

The Fair Work Commission found that the employer had failed to provide the Union with certain information during the negotiation process, which constituted a failure to bargain in good faith. However, the Commission also found that the Union had not been prejudiced by the employer's failure to provide this information, as it had sufficient information to form an informed view on the proposed agreement. The Commission further found that the Union had ample opportunity to review and respond to the proposed agreement and that the agreement had been genuinely negotiated. Accordingly, the Commission approved the agreement.

The Fair Work Commission approved the St John of God Health Care (Vic Hospitals) Allied Health Professionals Enterprise Agreement 2018 - 2021, finding that it had been genuinely negotiated and concluded in good faith, despite the employer's failure to provide certain information to the Union during the negotiation process.

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