DECISION

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

State of Victoria (Department of Health and Human Services)
(AG2020/2885)

MCH NURSES (DEPARTMENT OF HEALTH AND HUMAN SERVICES) AGREEMENT 2020

State and Territory government administration
COMMISSIONER CIRKOVIC	MELBOURNE, 10 NOVEMBER 2020

Application for approval of the MCH Nurses (Department of Health and Human Services) Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the MCH Nurses (Department of Health and Human Services) 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 the State of Victoria (Department of Health and Human Services). 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] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 14.4;

• Clause 37.4(a); and

• Clause 40.13.

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

[7] I note that the Notice of Employee Representational Rights provided to employees was not in the prescribed form. 1 Specifically, it incorrectly referred to s 174(6) of the Act (which has now been repealed), rather than s 174(1A) which sets out notice requirements. I am satisfied that in all of the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,2this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[8] The Agreement was approved on 10 November 2020 and, in accordance with s.54, will operate from 17 November 2020. The nominal expiry date of the Agreement is 1 May 2021.

COMMISSIONER

Annexure A:

1 See section 174(1A) Fair Work Act 2009.; Fair Work Regulations 2009 r 2.1, Scheduled 2.1.

2 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the Department of Health and Human Services in the Fair Work Commission, seeking approval of the MCH Nurses (Department of Health and Human Services) Agreement 2020. The applicant sought to finalise the agreement, which covered the employment terms of maternal and child health nurses employed by the Department. The dispute centred on whether the agreement met the statutory requirements under the Fair Work Act 2009, particularly in relation to the provisions concerning pay, conditions, and other employment terms.

The primary legal issue before the Commission was whether the proposed agreement was "better off overall" for the employees it covered. This involved assessing whether the agreement provided sufficient benefits to the employees to outweigh any detriments, ensuring compliance with the statutory criteria for approval. The Commission also had to consider whether the agreement was made in good faith and whether it met the requirements for coverage, fairness, and consistency with the national workplace relations system.

The Commission found that the proposed agreement was indeed better off overall for the employees, as it provided improved pay rates, conditions, and other benefits that addressed the specific needs of maternal and child health nurses. The Commission concluded that the agreement was made in good faith and met all the necessary statutory requirements for approval. The Commission also noted that the agreement was consistent with the national workplace relations system and would not undermine the principles of the Fair Work Act. Based on these findings, the Commission approved the application for the MCH Nurses (Department of Health and Human Services) Agreement 2020.

The Commission's decision was finalised with an order approving the agreement, which is now in effect and governs the employment terms of the maternal and child health nurses employed by the Department. The approval of the agreement ensures that the employees will benefit from the improved terms and conditions provided for in the agreement.

State of Victoria (Department of Health and Human Services)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established