Victorian Hospitals’ Industrial Association T/A Victorian Hospitals’ Industrial Association

[2022] FWCA 4337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Victorian Hospitals’ Industrial Association T/A Victorian Hospitals’ Industrial Association

(AG2022/4890)

Napier Street Aged Care Services Enterprise Agreement 2022

Aged care industry
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 9 DECEMBER 2022

Application for approval of the Napier Street Aged Care Services Enterprise Agreement 2022

Victorian Hospitals’ Industrial Association has applied for approval of an enterprise agreement known as the Napier Street Aged Care Services Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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.

The Australian Nursing and Midwifery Federation and the Health Services 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) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 December 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Victorian Hospitals’ Industrial Association, trading as the Victorian Hospitals’ Industrial Association, sought approval for the Napier Street Aged Care Services Enterprise Agreement 2022. The dispute arose from the negotiation and subsequent application for the approval of the enterprise agreement, which was intended to govern the terms and conditions of employment for workers within the aged care services sector. The application was filed under the Fair Work Act 2009, which mandates that enterprise agreements must be approved by the Fair Work Commission if they are to have legal effect.

The legal issues before the Commission involved assessing whether the enterprise agreement complied with the requirements of the Fair Work Act. This included determining if the agreement contained all the mandatory terms prescribed by the Act, if it was free from any prohibited content, and if the agreement had been genuinely negotiated between the employer and the employees. Additionally, the Commission had to consider if the agreement provided for appropriate dispute resolution mechanisms and if it met the 'better off overall test', ensuring that no employee would be worse off financially under the new agreement.

The Commission's decision was based on a thorough examination of the agreement's contents, the negotiation process, and its compliance with the statutory requirements. After reviewing the evidence presented, the Commission found that the Napier Street Aged Care Services Enterprise Agreement 2022 met all the necessary criteria for approval. The agreement contained all mandatory terms, was free from prohibited content, and had been genuinely negotiated. Furthermore, the Commission was satisfied that the agreement provided for adequate dispute resolution mechanisms and that it passed the 'better off overall test'. Consequently, the Commission approved the enterprise agreement, allowing it to come into effect as a legally binding contract between the parties.

The Fair Work Commission's final orders included the approval of the Napier Street Aged Care Services Enterprise Agreement 2022, effective from the date of the decision. The agreement was to apply to all employees covered by its terms, and both the employer and the employees were bound by its provisions. The approval also mandated that any disputes arising from the agreement would be resolved in accordance with the dispute resolution processes outlined within the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established