DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee for The Salvation Army (Vic) Social Work T/A James Barker House
(AG2018/4934)

THE JAMES BARKER HOUSE, ANMF AND HWU ENTERPRISE AGREEMENT 2018

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 FEBRUARY 2019

Application for approval of The James Barker House, ANMF and HWU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the James Barker House, ANMF and HWU Enterprise Agreement 2018 (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 The Salvation Army (Vic) Social Work T/A James Barker House. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I note that Clauses 37.8, 54.3, 45.1 are inconsistent with the National Employment Standards as clause 37.8 exempts probationary employees from redundancy provisions, clause 54.3 provides an employee’s personal leave entitlement in hours, and clause 45 provides 48 ordinary hours. Given the National Employment Standards precedence clause at clause 6.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) being a bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2019. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of The Trustee for The Salvation Army (Vic) Social Work T/A James Barker House, the Applicant, and the Australian Nursing and Midwifery Federation (ANMF) and Health Workers Union (HWU), the Respondents, the Fair Work Commission was called upon to determine the application for approval of The James Barker House, ANMF and HWU Enterprise Agreement 2018. The dispute centred around the terms and conditions of employment for workers at James Barker House, a facility providing support services to individuals experiencing homelessness.

The primary legal issues before the Commission were whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, specifically whether it was a "better off overall test" (BOOT) agreement. This test requires that the agreement must not disadvantage employees in terms of wages, conditions, or entitlements compared to the applicable award or previous agreement. Additionally, the Commission had to consider whether the agreement adhered to the principles of good faith bargaining and whether it was in the interests of industrial peace and harmony.

The Commission evaluated the evidence and submissions from both parties, examining the provisions of the proposed agreement against the statutory requirements. It considered the BOOT, the principles of good faith bargaining, and the overall fairness and reasonableness of the agreement. After thorough deliberation, the Commission found that the proposed agreement met the statutory criteria and was in the interests of industrial peace and harmony. The Commission approved the agreement, acknowledging its benefits for the employees and the organisation.

The final orders of the Commission were that The James Barker House, ANMF and HWU Enterprise Agreement 2018 be approved, and it be registered with the Fair Work Commission. The agreement was to take effect from the date of the decision and be binding on all parties involved.

The Trustee for The Salvation Army (Vic) Social Work T/A James Barker House

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established