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

[2023] FWCA 2804

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

(AG2023/2856)

ST JOHN OF GOD HEALTH CARE MAINTENANCE CAREGIVERS AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 4 SEPTEMBER 2023

Application for approval of the St John of God Health Care Maintenance Caregivers Agreement 2023.

An application has been made for approval of an enterprise agreement known as the St John Of God Health Care Maintenance Caregivers Agreement 2023 (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 Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 2 February 2023 and the Agreement was made on 7 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) who were bargaining agents, did not express a view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the CEPU and CFMMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 August 2025.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

St John Of God Health Care Inc, trading as St John Of God Health Care, sought approval for the St John of God Health Care Maintenance Caregivers Agreement 2023, which would govern the terms and conditions of employment for its maintenance staff. The dispute arose under the Fair Work Act 2009, and the case was heard by the Fair Work Commission. The primary legal issue before the Commission was whether the proposed agreement complied with the requirements of the Fair Work Act and the relevant regulations. Specifically, the Commission needed to determine if the agreement was a "single interest employer agreement" as defined in the Act, and if it provided for appropriate mechanisms for resolving disputes.

The Commission examined the proposed agreement and the evidence provided by St John Of God Health Care. It considered whether the agreement covered a single employer and a single enterprise, and whether it was made in good faith and without coercion. The Commission also assessed if the agreement provided for adequate dispute resolution mechanisms, including a process for conciliation and, if necessary, arbitration. After reviewing the evidence, the Commission found that the proposed agreement met the requirements of the Act and the regulations. The agreement was deemed to be a single interest employer agreement, and it provided for appropriate dispute resolution mechanisms. Consequently, the Commission approved the St John of God Health Care Maintenance Caregivers Agreement 2023, effective from the date of the decision.

The Fair Work Commission's decision provides clarity on the requirements for approving maintenance caregiver agreements in the Australian context. The Commission's analysis of the legal issues and its findings on the compliance of the proposed agreement with the Fair Work Act and the relevant regulations will be of significant interest to employers and employees in the maintenance sector. The decision also highlights the importance of ensuring that agreements provide for effective dispute resolution mechanisms to facilitate the resolution of any issues that may arise during the term of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established