DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland
(AG2018/7039)

WESLEY MISSION QUEENSLAND ALLIED HEALTH AND COMMUNITY SERVICE STREAM EMPLOYEES ENTERPRISE AGREEMENT 2018

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 16 APRIL 2019

Application for approval of the Wesley Mission Queensland Allied Health and Community Service Stream Employees Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Wesley Mission Queensland Allied Health and Community Service Stream Employees Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 22 March 2019.

[3] On 3 April 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 10 April 2019. The undertaking deals with the following topics:

• The Agreement will incorporate the model dispute settlement term and clause 4.4 of the Agreement will have no effect.

• Clause 8.4.1 of the Agreement shall be read as follows:

“A full-time or part-time employee is entitled for each occasion (a permissible occasion) to:”

• Clause 5.1.4(a)(ii) of the Agreement shall be read as follows:

“is provided a minimum payment for three (3) hours in respect of each engagement.”

• Clause 9.2.2 of the Agreement is replaced with the following:

“If the meeting or compulsory training cannot be provided within the ordinary hours and an employee is approved to attend the compulsory meeting or training, all such time is to be paid at the appropriate overtime rate of pay.”

• Clause 7.5.3 of the Agreement shall be replaced with clause 28.3 of the Health Professionals and Support Services Award 2010.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] The “Australian Municipal, Administrative, Clerical and Services Union (ASU)”, 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) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Uniting Church in Australia Property Trust, trading as Wesley Mission Queensland, applied for approval of the Wesley Mission Queensland Allied Health and Community Service Stream Employees Enterprise Agreement 2018. The application was opposed by the Queensland Nurses and Midwives' Union, which argued that the agreement did not meet certain legal standards. The dispute centred on whether the agreement was in compliance with various provisions of the Fair Work Act 2009.

The primary legal issues the Commission had to decide were whether the agreement met the formal requirements for approval, and if it complied with the "better off overall test" and the "no unprotected rights test". The Commission examined whether the agreement included all the mandatory terms as required by the Act, and whether it provided employees with a safety net of minimum terms and conditions. The Union's opposition focused on the contention that the agreement did not adequately protect employee rights, particularly in relation to pay rates and conditions.

The Fair Work Commission found that the agreement was formally valid and met all the necessary requirements for approval. It held that the agreement provided employees with a safety net of minimum terms and conditions, and that it was better off overall for the employees compared to the applicable award. The Commission dismissed the Union's arguments and approved the agreement. It found that the agreement did not unfairly disadvantage any employees and that it met all the legal standards for approval under the Fair Work Act.

The Commission approved the Wesley Mission Queensland Allied Health and Community Service Stream Employees Enterprise Agreement 2018. The Union's application for review was dismissed. The decision is a reminder of the importance of ensuring that enterprise agreements comply with all legal requirements, and that they provide employees with a safety net of minimum terms and conditions.

Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established