State of Victoria (Department of Health and Human Services)

[2020] FWCA 6042

[2020] FWCA 6042

FAIR WORK COMMISSION

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was not in the prescribed form. 1 Specifically, it incorrectly referred to s 174(6) of the Act (which has now been repealed), rather than s 174(1A) which sets out notice requirements.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.

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