DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Victorian Hospitals’ Industrial Association
(AG2017/1306)

VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH SERVICES ENTERPRISE AGREEMENT 2016-2020

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 28 AUGUST 2017

Application for approval of the Victorian Institute of Forensic Mental Health Services Enterprise Agreement 2016-2020.

[1] An application has been made for approval of an enterprise agreement known as the Victorian Institute of Forensic Mental Health Services Enterprise Agreement 2016-2020 (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 single enterprise agreement.

[2] The Applicant 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] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

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

[5] The Health Services Union and the Australian Nursing and Midwifery Federation, 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) I note that the Agreement covers these organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 September 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Victorian Hospitals’ Industrial Association brought an application before the Fair Work Commission for approval of the Victorian Institute of Forensic Mental Health Services Enterprise Agreement 2016-2020. The application was made under section 230 of the Fair Work Act 2009, as the agreement was not approved by the Commission within the required timeframe. The nature of the dispute centred around the procedural fairness of the Commission’s decision not to approve the agreement, and the merits of the agreement itself.

The primary legal issue before the Commission was whether the decision to not approve the enterprise agreement was made in a manner that was procedurally fair and whether the agreement complied with the requirements of the Fair Work Act. The Commission had to determine if it had followed due process in its evaluation of the agreement, particularly in the context of whether it had adequately considered the evidence and arguments presented by both the employer and the union. Additionally, the Commission had to assess whether the agreement contained any provisions that contravened the Act, including those related to the terms and conditions of employment, such as wages, hours of work, and other employment-related matters.

In its decision, the Commission examined the evidence and submissions provided by both parties and found that it had acted in a procedurally fair manner. The Commission also determined that the agreement was compliant with the Fair Work Act and contained appropriate provisions for the terms and conditions of employment. The Commission held that the employer had not demonstrated any valid reasons why the agreement should not be approved, and therefore, the application for approval was successful. The Fair Work Commission approved the enterprise agreement, allowing it to come into effect as of the agreed date.

As a result of the Commission’s decision, the Victorian Institute of Forensic Mental Health Services Enterprise Agreement 2016-2020 was approved, and the agreement will now govern the employment conditions of the relevant employees for the specified period. The approval ensures that the agreement will be legally binding on both the employer and the employees, and it will provide a framework for the resolution of any future disputes between the parties.

Victorian Hospitals’ Industrial Association

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established