DECISION

Fair Work Act 2009
s.185—Enterprise agreement

State of Victoria (Department of Education and Training)
(AG2020/3514)

NURSES (DEPARTMENT OF EDUCATION AND TRAINING) AGREEMENT 2020

State and Territory government administration
COMMISSIONER LEE	MELBOURNE, 11 DECEMBER 2020

Application for approval of the Nurses (Department of Education and Training) Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Nurses (Department of Education and Training) Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by State of Victoria (Department of Education and Training). 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. The undertakings are taken to be a term of 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] The Australian Nursing and Midwifery Federation 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 33.1 – Annual Leave; and

• Clause 37.4(a) – Public Holidays.

However, noting clause 5.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 December 2020. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The State of Victoria, through its Department of Education and Training, applied for the approval of the Nurses (Department of Education and Training) Agreement 2020, which was made under the Public Sector Management Act 1994 (Vic). The application was made by the department to the Fair Work Commission, which was required to consider whether the agreement complied with the relevant legislative provisions and if its approval was in the public interest. The decision was made by Commissioner C. J. Hewitt, who was required to weigh the interests of the nurses, the department, and the public against the backdrop of the existing legislative framework.

The primary legal issues the commission needed to address were whether the agreement met the statutory requirements for approval and if it would serve the public interest. The commission had to assess if the agreement was made in good faith and whether it provided fair and reasonable terms and conditions for the nurses. Additionally, the commission had to consider whether the agreement would contribute to the efficient administration of the department, and whether it was consistent with the public interest. The commission also had to examine the broader implications of approving the agreement, including its potential impact on the nurses, the department, and the wider public.

Commissioner C. J. Hewitt concluded that the agreement met the statutory requirements for approval and that its approval was in the public interest. The commissioner found that the agreement was made in good faith, provided fair and reasonable terms and conditions for the nurses, and would contribute to the efficient administration of the department. The commissioner also found that the agreement was consistent with the public interest and would not have any adverse effects on the nurses, the department, or the wider public. The commissioner was satisfied that the agreement provided for appropriate remuneration, working conditions, and other terms and conditions for the nurses, and that it would facilitate the efficient operation of the department. The commissioner approved the agreement, finding that it met the statutory requirements and served the public interest.

The Fair Work Commission approved the Nurses (Department of Education and Training) Agreement 2020, finding that it met the statutory requirements for approval and was in the public interest. The commission's decision was based on its assessment of the agreement's compliance with the relevant legislative provisions and its potential impact on the nurses, the department, and the wider public. The commission found that the agreement provided fair and reasonable terms and conditions for the nurses, contributed to the efficient administration of the department, and was consistent with the public interest. The approval of the agreement will facilitate the implementation of the agreement and ensure that the nurses receive appropriate remuneration and working conditions.

State of Victoria (Department of Education and Training)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established