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

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

The applicants, VEI Services Pty Ltd, trading as Vision Day Surgery Camberwell, Panch Day Surgery Centre, Vision Day Surgery Eastern, and Vision Day Surgery Footscray, sought approval of the VEI Services Pty Ltd Nurses (Victorian) Enterprise Agreement 2020. The respondents were the Health Services Union of Australia, the Australian Nursing and Midwifery Federation, and the Australian Medical Association (Victoria). The matter was heard in the Fair Work Commission, presided over by Deputy President S. M. Gilmour.

The legal issues before the court revolved around whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court had to consider if the agreement had been fairly and genuinely negotiated, if it contained terms and conditions that were fair and reasonable, and if it complied with the relevant provisions of the Act. The respondents argued that the agreement was not fairly and genuinely negotiated, and that it contained terms that were unfair and unreasonable.

In delivering the decision, Deputy President Gilmour found that the agreement had indeed been fairly and genuinely negotiated. The court noted that the process involved multiple meetings, submissions, and amendments, which demonstrated a genuine effort to reach an agreement. Furthermore, the court determined that the terms and conditions of the agreement were fair and reasonable, taking into account the nature of the work and the bargaining power of the parties. The Deputy President concluded that the agreement complied with the relevant provisions of the Act and approved the VEI Services Pty Ltd Nurses (Victorian) Enterprise Agreement 2020.

The final orders of the court were that the enterprise agreement be approved as a certified agreement under the Fair Work Act 2009. The agreement would now apply to the employees covered by the agreement and would be in effect for the period specified within the agreement. The Deputy President also directed that the agreement be registered with the Fair Work Commission and published on the Commission's website.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established