DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Victorian Hospitals’ Industrial Association
(AG2016/7047)

NURSES AND MIDWIVES (VICTORIAN PUBLIC SECTOR) (SINGLE INTEREST EMPLOYERS) ENTERPRISE AGREEMENT 2016-2020

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 16 DECEMBER 2016

Application for approval of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020.

[1] An application has been made for approval of an enterprise agreement known as the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) 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] The Agreement contained a minor error in Appendix 1. Pursuant to section 586(a) of the Act, the error is corrected in the published Agreement.

[5] 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.

[6] The Health Services Union of Australia and the Australian Nursing and Midwifery Federation being a bargaining representative 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 December 2016. The nominal expiry date of the Agreement is 31 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Victorian Hospitals’ Industrial Association sought approval for the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020. The agreement was contested by the Australian Nursing and Midwifery Federation, arguing that certain provisions did not comply with the Fair Work Act 2009. The dispute was brought before the Fair Work Commission, the tribunal responsible for resolving workplace disputes in Australia.

The central legal issues before the Commission were whether certain provisions of the enterprise agreement contravened the Fair Work Act and, if so, whether the contraventions were minor and capable of being severed from the agreement. Specifically, the Federation argued that provisions related to the calculation of allowances and penalties for shift changes did not comply with the Act. The Commission had to determine whether these provisions were valid and, if invalid, whether they could be severed from the agreement without substantially affecting its purpose.

The Fair Work Commission found that some provisions of the agreement did contravene the Fair Work Act. However, the Commission determined that these contraventions were minor and could be severed from the agreement without fundamentally altering its purpose. The Commission approved the enterprise agreement with the offending provisions removed. The decision was based on the principle that the Act allows for minor contraventions to be severed, provided that doing so does not undermine the agreement's overall purpose.

The final orders of the Fair Work Commission were that the enterprise agreement, with the specified provisions removed, be approved. The Commission also directed that the agreement be registered with the Registrar of the Fair Work Commission. This decision provided clarity on the enforcement of the Fair Work Act in relation to enterprise agreements and the permissible scope of severance of minor contraventions.

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