VEI Services Pty Ltd T/A Vision Day Surgery Camberwell, Panch Day Surgery Centre, Vision Day Surgery Eastern, Vision Day Surgery Footscray

[2020] FWCA 4391

[2020] FWCA 4391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

VEI Services Pty Ltd T/A Vision Day Surgery Camberwell, Panch Day Surgery Centre, Vision Day Surgery Eastern, Vision Day Surgery Footscray
(AG2020/2039)

VEI SERVICES PTY LTD NURSES (VICTORIAN) ENTERPRISE AGREEMENT 2020

Health and welfare services
COMMISSIONER CIRKOVIC	MELBOURNE, 19 AUGUST 2020

Application for approval of the VEI Services Pty Ltd Nurses (Victorian) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the VEI Services Pty Ltd Nurses (Victorian) 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 VEI Services Pty Ltd T/A Vision Day Surgery Camberwell, Panch Day Surgery Centre, Vision Day Surgery Eastern and Vision Day Surgery Footscray. 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] I am satisfied that each of the requirements of ss.186, 187 and 188 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 Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 23(3);

•  Clause 26(d);

•  Clause 27(c);

•  Clause 27(e);

•  Clause 29(b)(iii);

•  Clause 34(4)(vi); and

•  Clause 34(4)(b).

[6] However, noting clause 7 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement was approved on 19 August 2020 and, in accordance with s.54, will operate from 26 August 2020. The nominal expiry date of the Agreement is 1 July 2022.

COMMISSIONER

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Annexure A: