Victorian Hospitals' Industrial Association

[2024] FWCA 3908

[2024] FWCA 3908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Victorian Hospitals’ Industrial Association

(AG2024/3737)

NURSES AND MIDWIVES (VICTORIAN PUBLIC SECTOR) SINGLE INTEREST EMPLOYER AGREEMENT 2024-2028

Health and welfare services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 8 NOVEMBER 2024

Application for approval of the Nurses and Midwives (Victorian Public Sector) Single Interest Employer Agreement 2024-2028

1. An application has been made for approval of an enterprise agreement known as the Nurses and Midwives (Victorian Public Sector) Single Interest Employer Agreement 2024-2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Victorian Hospitals’ Industrial Association. The Agreement is a multi-enterprise agreement. I note that a Single Interest Employer Order was issued by Deputy President Hampton on 6 March 2024.[1]

1. Rule 32(3) of the Fair Work Commission Rules 2024 (Cth) (the Rules) states that if an application is made under s.185 of the Act for approval of an enterprise agreement that is not a greenfields agreement, each employer that is to be covered by the agreement must lodge a declaration in support of the application for approval, within 14 days after the agreement is made. The Applicant has only filed one form F17 on behalf of the employers. However, noting that they are single interest employers, I dispense with compliance with rule 32(3) of the Rules.

1. Four employers did not provide the Notice of Employee Representational Rights (the NERR) within 14 days after the date of notification. Pursuant to s.188(5), I am satisfied that the agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.173(3) of the Act. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(5) of the Act.

1. 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.

2. The Health Services Union (HSU) and the Australian Nursing and Midwifery Federation (ANMF), being the 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. The HSU and ANMF support approval of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 12.3(e) – Rejecting a Comparable Role;

·Clause 12.8 – Exception to application of Victorian Government’s policy with respect to severance pay;

·Clause 57.1(a) – Entitlement to Annual Leave;

·Clause 61.6(b) – Notice requirements; and

·Clause 64.2 – Definition of Family and Domestic Violence.

However, noting clause 6.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 November 2024. The nominal expiry date of the Agreement is 30 April 2028.

DEPUTY PRESIDENT

[1] Victorian Hospitals’ Industrial Association v Australian Nursing and Midwifery Federation (ANMF) and Health Services Union (HSU)[2024] FWC 482, PR771708; PR771706.

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