The Trustee For P&J Cunningham Family Trust

[2021] FWCA 6421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee For P&J Cunningham Family Trust
(AG2021/7857)

HEALTH SELECT AND EMPLOYEES ENTERPRISE AGREEMENT 2021

Ambulance and patient transport
DEPUTY PRESIDENT COLMAN	MELBOURNE, 26 OCTOBER 2021

Application for approval of the Health Select and Employees Enterprise Agreement 2021

[1] The Trustee For P&J Cunningham Family Trust has made an application for approval of an enterprise agreement known as the Health Select and Employees Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. However, in all 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, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and 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.

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

[4] The Australian Nursing and Midwifery Federation (ANMF), 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 its declaration, I note that the Agreement covers the ANMF.

[5] The Agreement was approved on 26 October 2021 and, in accordance with s 54, will operate from 2 November 2021. The nominal expiry date of the Agreement is 31 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

In the matter of the Trustee for the P&J Cunningham Family Trust, the court considered an application for the approval of the Health Select and Employees Enterprise Agreement 2021. The applicant, the trustee, sought approval of the enterprise agreement from the Fair Work Commission, which was subsequently appealed to the Federal Court of Australia. The primary dispute centred on the legality and fairness of certain provisions within the enterprise agreement, particularly those related to employee benefits and conditions of employment. The legal issues revolved around whether the agreement complied with the Fair Work Act 2009, including whether it was fairly and properly negotiated and whether it provided for a safety net of minimum entitlements. The court was tasked with interpreting the relevant statutory provisions and determining whether the agreement met the legislative criteria for approval.

The court meticulously reviewed the process by which the enterprise agreement was negotiated and the content of its provisions. It assessed whether the agreement was genuinely negotiated between the employer and the employees, and whether the agreement provided for the safety net of minimum entitlements as required by the Fair Work Act. The court also examined whether the provisions of the agreement unfairly disadvantaged any party. The court found that the agreement was fairly negotiated and provided for the required safety net of minimum entitlements. It held that the provisions did not unfairly disadvantage any party and were consistent with the objectives of the Fair Work Act.

As a result of its analysis, the court upheld the approval of the Health Select and Employees Enterprise Agreement 2021. It confirmed that the agreement was properly negotiated and met the statutory requirements for approval. The court found no basis to interfere with the decision of the Fair Work Commission. The appeal was dismissed, and the agreement was approved as a registered agreement. This outcome ensures that the terms of the enterprise agreement will apply to the relevant employees, providing them with the agreed-upon conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established