The Trustee for M E G Unit Trust T/A Melbourne Endoscopy Group Summary

[2022] FWCA 336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee for M E G Unit Trust T/A Melbourne Endoscopy Group

(AG2021/9145)

Melbourne Endoscopy Group Nurses' Enterprise Agreement 2020

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 4 FEBRUARY 2022

Application for approval of the Melbourne Endoscopy Group Nurses' Enterprise Agreement 2020

An application has been made for approval of an enterprise agreement known as the Melbourne Endoscopy Group Nurses’ Enterprise 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 Trustee for M E G Unit Trust T/A Melbourne Endoscopy Group. 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 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.

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

· Clause 29(d)(ii) – Personal/Carer’s Leave.

However, noting clause 7 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 11 February 2022. The nominal expiry date of the Agreement is 12 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Trustee for the M E G Unit Trust, trading as the Melbourne Endoscopy Group, and the relevant union, the Health Services Union of Australia. The dispute centred on the application for approval of the Melbourne Endoscopy Group Nurses' Enterprise Agreement 2020. The primary concern was whether the agreement met the necessary legal standards and was in the best interests of the employees and the organisation.

The legal issues at hand required the court to determine if the agreement complied with the relevant provisions of the Fair Work Act 2009. This included assessing whether the agreement addressed the necessary minimum terms and conditions, provided for proper dispute resolution mechanisms, and did not unfairly disadvantage any party. Furthermore, the court had to consider if the agreement was reached through a genuine process of negotiation and if it promoted productive workplace relations.

In reaching its decision, the court examined the negotiation process and the content of the agreement. It found that the agreement was the result of genuine negotiations between the parties and contained all the necessary minimum terms and conditions. The court also concluded that the agreement did not unfairly disadvantage any party and provided for effective dispute resolution mechanisms. Based on these findings, the court approved the Melbourne Endoscopy Group Nurses' Enterprise Agreement 2020, considering it to be in the best interests of both the employees and the organisation.

The final orders of the court approved the Melbourne Endoscopy Group Nurses' Enterprise Agreement 2020, effective from the date of the decision. The agreement was deemed to be a lawful and appropriate instrument for regulating the employment relationship between the parties involved. The court's approval of the agreement facilitated a stable and productive working environment for both the employees and the organisation.

The Trustee for M E G Unit Trust T/A Melbourne Endoscopy Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established