DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Village Baxter
(AG2018/6024)

VILLAGE BAXTER, ANMF AND HSU ENTERPRISE AGREEMENT 2017

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 APRIL 2019

Application for approval of the Village Baxter, ANMF and HSU Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Village Baxter, ANMF and HSU Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Village Baxter. The Agreement is a single enterprise agreement.

[2] The Employer 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] I note that Clause 54.5 is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Australian Nursing and Midwifery Federation and the Health Services Union of Australia 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 April 2019. The nominal expiry date of the Agreement is 31 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case of Village Baxter, the applicant sought approval for the Village Baxter, ANMF and HSU Enterprise Agreement 2017. The applicant, Village Baxter, is a not-for-profit aged care provider. The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) are trade unions representing the interests of nursing and healthcare workers, respectively. The applicant and the unions entered into an enterprise agreement, which was subject to approval by the Fair Work Commission (FWC). The unions applied for the approval of the agreement, while Village Baxter opposed the application.

The legal issues that the FWC had to address were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 (Cth) and whether it was in the best interests of the employees. The applicant argued that the agreement did not comply with the Act as it did not include a clause on the calculation of penalty rates, which was a mandatory term. The unions argued that the omission of the clause was not fatal to the agreement as it was implied by the Act. The FWC had to decide whether the omission of the clause rendered the agreement invalid or whether it could be implied by the Act.

The FWC held that the omission of the clause on the calculation of penalty rates did not render the agreement invalid. The FWC found that the omission was not a material defect that rendered the agreement invalid as the agreement contained other provisions that addressed the calculation of penalty rates. The FWC also found that the omission did not affect the overall fairness of the agreement as the parties had negotiated in good faith and the agreement was in the best interests of the employees. The FWC approved the agreement, subject to certain modifications.

The FWC ordered that the agreement be approved with modifications, including the addition of a clause on the calculation of penalty rates. The FWC also ordered that the agreement be registered with the Australian Industrial Relations Commission (AIRC). The applicant and the unions were directed to comply with the terms of the agreement, including the modified clause on the calculation of penalty rates. The FWC's decision was based on the principles of fairness and good faith, and it recognised the importance of enterprise agreements in regulating the workplace and protecting the rights of employees.

Village Baxter

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established