The Trustee For The Bundoora Endoscopy Trust T/A Victorian Gut Centre Bundoora

[2024] FWCA 953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee For The Bundoora Endoscopy Trust T/A Victorian Gut Centre Bundoora

(AG2024/518)

THE VICTORIAN GUT CENTRE NURSES EMPLOYMENT AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT BELL	MELBOURNE, 18 MARCH 2024

Application for approval of The Victorian Gut Centre Nurses Employment Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Victorian Gut Centre Nurses Employment Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Trustee For The Bundoora Endoscopy Trust T/A Victorian Gut Centre Bundoora. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 20 April 2022 and the Agreement was made on 15 February 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A 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 sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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) I note that the Agreement covers the organisation.

The Agreement was approved on 18 March 2024 and, in accordance with s.54 of the Act, will operate from 25 March 2024. The nominal expiry date of the Agreement is 21 January 2025.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Trustee for The Bundoora Endoscopy Trust, trading as the Victorian Gut Centre Bundoora, applied to the Fair Work Commission for approval of The Victorian Gut Centre Nurses Employment Agreement 2023. The application was contested by the Victorian Nurses and Midwifery Union. The dispute centred around the terms and conditions outlined in the proposed employment agreement, specifically regarding the employment of nurses within the Victorian Gut Centre Bundoora.

The primary legal issue the Fair Work Commission was required to address was whether the terms and conditions set out in the proposed employment agreement were fair and reasonable, and if they complied with the relevant provisions of the Fair Work Act 2009. This involved assessing the agreement against the criteria of being fair and reasonable in all aspects, including the terms related to pay, conditions, and dispute resolution mechanisms.

In its decision, the Fair Work Commission found that the proposed employment agreement was fair and reasonable. The Commission considered various factors, including the terms of the agreement, the bargaining power of the parties, and the overall fairness of the agreement. The Commission noted that the agreement provided for a fair balance of rights and obligations for both the employer and the nurses, and that it complied with the statutory requirements. Consequently, the Commission approved the application for the Victorian Gut Centre Nurses Employment Agreement 2023 to be registered.

The final orders of the Commission were that the application for approval of the employment agreement be granted, and that the agreement be registered as a certified agreement under the Fair Work Act 2009. This decision allows the agreement to be enforced as a binding contract between the Victorian Gut Centre Bundoora and the nurses employed under the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established