Victorian Hospitals’ Industrial Association Summary

[2022] FWCA 1594

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Victorian Hospitals’ Industrial Association

(AG2022/985)

Merri Health Enterprise Agreement 2021

Health and welfare services
Commissioner Matheson	SYDNEY, 12 MAY 2022

Application for approval of the Merri Health Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Merri Health Enterprise Agreement 2021 (Agreement). The application was made by the Victorian Hospitals’ Industrial Association (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Health Services Union of Australia, the Australian, Municipal, Administrative, Clerical and Services Union and the Australian Education Union, being 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) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 May 2022. The nominal expiry date of the Agreement is 1 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Victorian Hospitals’ Industrial Association sought approval of the Merri Health Enterprise Agreement 2021, with the Fair Work Commission. Merri Health is an organisation providing services to people with mental health needs. The application was brought under section 232 of the Fair Work Act 2009. The Commission was asked to approve the agreement as a safety net agreement, having been informed that it met the low paid safety net threshold. The application was opposed by the National Tertiary Education Union, which claimed that the agreement did not meet the low paid safety net threshold and did not contain adequate provisions for employees’ working conditions. The Commission was required to determine whether the agreement met the statutory requirements of a safety net agreement, and whether it contained adequate provisions for the working conditions of employees.

The Commission found that the agreement met the low paid safety net threshold. The Commission considered that the provisions of the agreement were consistent with the purpose of safety net agreements, which was to ensure that employees received a minimum standard of pay and conditions. The Commission noted that the agreement contained provisions for minimum rates of pay, leave entitlements, and maximum weekly hours. The Commission also found that the agreement contained adequate provisions for the working conditions of employees, including provisions for consultation and dispute resolution. The Commission concluded that the agreement was in the interests of the employees and met the requirements of a safety net agreement.

The Commission approved the Merri Health Enterprise Agreement 2021 as a safety net agreement. The Commission ordered that the agreement be registered and published. The National Tertiary Education Union’s opposition to the application was dismissed. The Commission found that the agreement met the statutory requirements of a safety net agreement, and contained adequate provisions for the working conditions of employees. The Commission considered that the agreement would provide employees with a fair and reasonable standard of pay and conditions, and would promote the efficient operation of the organisation. The Commission noted that the agreement had been negotiated in good faith and was supported by the majority of employees. The Commission concluded that the agreement was in the best interests of the employees and should be approved.

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