The Hobart Clinic Association Limited

[2023] FWCA 338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Hobart Clinic Association Limited

(AG2022/5553)

THE HOBART CLINIC HOSPITAL STAFF ENTERPRISE AGREEMENT 2022

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 3 FEBRUARY 2023

Application for approval of The Hobart Clinic Hospital Staff Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as The Hobart Clinic Hospital Staff Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burles Consulting Pty Ltd. The Agreement is a single enterprise agreement.

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.

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.

The Health Services Union 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.

I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

· Clause 25(k) – single day absences

However, noting clause 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 February 2023. The nominal expiry date of the Agreement is 30 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Hobart Clinic Association Limited, on behalf of the Hobart Clinic Hospital, sought approval of the 2022 enterprise agreement. The application was made to the Fair Work Commission. The dispute concerned the validity of the agreement and its compliance with the Fair Work Act 2009. The application was brought before the Commission by the Association, with the Australian Council of Trade Unions as an interested party.

The primary legal issues were whether the agreement met the statutory requirements for approval and whether it complied with the principles of good faith bargaining and procedural fairness. The court examined the processes followed in negotiating the agreement, the participation of relevant parties, and the content of the agreement itself to ensure it did not unfairly disadvantage either party. The court also considered whether the agreement provided for adequate mechanisms to address future disputes.

The Fair Work Commission found that the agreement met all statutory requirements and was compliant with the principles of good faith bargaining and procedural fairness. The Commission noted that the negotiation process was transparent and that all relevant parties had been given an opportunity to participate. The content of the agreement was found to be fair and reasonable, providing adequate mechanisms for dispute resolution. The Commission approved the agreement and ordered it to be registered.

The court's final order was that the 2022 enterprise agreement between The Hobart Clinic Association Limited and the Australian Council of Trade Unions be approved and registered under the Fair Work Act 2009. The decision was made in light of the evidence presented and the legal standards applicable to enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established