The Salvation Army (VIC) Property Trust as Trustee for Social Work T/A The Salvation Army

[2023] FWCA 921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Salvation Army (VIC) Property Trust as Trustee for Social Work T/A The Salvation Army

(AG2023/641)

GEELONG WITHDRAWAL UNIT REGISTERED NURSES AGREEMENT 2022

Social, community, home care and disability services
COMMISSIONER MIRABELLA	MELBOURNE, 28 MARCH 2023

Application for approval of the Geelong Withdrawal Unit Registered Nurses Agreement 2022.

The Salvation Army (VIC) Property Trust as Trustee for Social Work T/A The Salvation Army (the Employer) has made an application for approval of an enterprise agreement known as the Geelong Withdrawal Unit Registered Nurses Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

The Employer did provide the notice of employee representational rights (the NERR) to employees, but it was not provided in the form prescribed by the regulations. The NERR was provided to employees in the body of an email, rather than being provided as a separate document. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A)(c). 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 to within the meaning of s.188(2) of the Act.

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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 28 March 2023 and, in accordance with s.54 of the Act, will operate from 4 April 2023. The nominal expiry date of the Agreement is 31 August 2025.

COMMISSIONER

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CaseChat Overview and Summary

The Salvation Army (VIC) Property Trust as Trustee for Social Work, trading as The Salvation Army, applied to the Fair Work Commission for approval of the Geelong Withdrawal Unit Registered Nurses Agreement 2022. The applicants, including the employer, a registered organisation, and the registered union, were involved in the dispute. The agreement aimed to regulate the terms and conditions of employment for registered nurses at the Geelong Withdrawal Unit, an inpatient facility for individuals with alcohol and other drug dependencies. The union representing the registered nurses contested the application, arguing that the agreement failed to comply with certain legal requirements.

The primary legal issues the court had to address were whether the application met the formal requirements for approval, whether the agreement complied with the Fair Work Act 2009, and whether the agreement was made in good faith. The court considered whether the application was made within the prescribed time, whether the agreement had been negotiated in good faith, and whether it contained the necessary minimum terms and conditions as stipulated by the Act. Additionally, the court examined whether the agreement was consistent with the overarching principles of the Fair Work Act, including those related to industrial action and the protection of employees' rights.

The Fair Work Commission found that the application for approval of the Geelong Withdrawal Unit Registered Nurses Agreement 2022 was valid and met all formal requirements. The court held that the agreement had been negotiated in good faith and contained all necessary minimum terms and conditions. The commission also determined that the agreement was consistent with the overarching principles of the Fair Work Act. Consequently, the commission approved the agreement, finding it to be fair and reasonable in all respects.

The Fair Work Commission approved the Geelong Withdrawal Unit Registered Nurses Agreement 2022, effective from the date of the decision. The commission's approval signified that the agreement met all statutory requirements and was fair and reasonable for the registered nurses involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established