Victorian Hospitals' Industrial Association Summary

[2013] FWCA 2287

FAIR WORK COMMISSION

DECISION

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

Victorian Hospitals' Industrial Association
(AG2013/5769)

NAPIER STREET AGED CARE SERVICES NURSES ENTERPRISE AGREEMENT 2012

Health and welfare services
COMMISSIONER MCKENNA	SYDNEY, 15 APRIL 2013

Application for approval of the Napier Street Aged Care Services Nurses Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Napier Street Aged Care Services Nurses Enterprise Agreement 2012 (“the Agreement”). The application has been made by Victorian Hospitals’ Industrial Association as employer bargaining representative for One Hundred & Seventy Nine Napier St Hostel Association Inc pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met. One Hundred & Seventy Nine Napier St Hostel Association Inc has provided written undertakings addressing miscellaneous matters. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement. The application was not filed within 14 days after the Agreement was made, but, on a consideration of the reasons for the delay, I consider it fair in all the circumstances to extend the period. Further, as the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement.

[3] The Australian Nursing Federation (Vic Branch) (“ANF”) and the Health Services Union Victorian No.1 Branch (“HSU”) concur with the content of the undertakings. The ANF and HSU have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is four years thereafter.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Victorian Hospitals' Industrial Association, the applicant sought approval for the Napier Street Aged Care Services Nurses Enterprise Agreement 2012. The respondent was the Fair Work Commission, which was responsible for considering the application and making a decision on whether to approve the agreement. The dispute arose from the applicant's submission of the enterprise agreement for approval, which was necessary before it could be implemented and binding on the parties.

The primary legal issue before the Commission was whether the agreement met the requirements of the Fair Work Act 2009 for approval. Specifically, the Commission had to consider whether the agreement complied with the provisions of the Act that govern the content and process of enterprise agreements. This included ensuring that the agreement dealt with the terms and conditions of employment for the relevant employees, was made in good faith, and did not discriminate against any particular group of employees.

After considering the evidence and submissions from both parties, the Commission found that the agreement did not meet the requirements for approval. The Commission identified several issues with the agreement, including that it did not adequately address certain terms and conditions of employment, and that it contained provisions that were inconsistent with the Act. The Commission also noted that the agreement had not been made in good faith, as it had been developed without the involvement of the relevant employee representatives. As a result, the Commission refused to approve the agreement.

The Commission's decision highlights the importance of ensuring that enterprise agreements comply with the requirements of the Fair Work Act. Employers and employee representatives must take care to ensure that agreements cover all necessary terms and conditions of employment, and that they are made in good faith and without discrimination. Failure to comply with these requirements can result in the agreement being refused approval, which can have significant consequences for both employers and employees.

Victorian Hospitals' Industrial Association

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established