DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wesley Community Services Limited T/A Wesley Mission
(AG2018/2912)

WESLEY MISSION HOSPITALS AND HSU - NSW ENTERPRISE AGREEMENT 2018-2019

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 NOVEMBER 2018

Application for approval of the Wesley Mission Hospitals and HSU - NSW Enterprise Agreement 2018-2019.

[1] An application has been made for approval of an enterprise agreement known as the Wesley Mission Hospitals and HSU - NSW Enterprise Agreement 2018-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wesley Community Services Limited T/A Wesley Mission. 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 the following provisions are inconsistent with the National Employment Standards:

● Clause 39 which states that a household is defined as a family group living together in the same domestic dwelling;

● Clause 35 defines a casual as one that is engaged on an hourly basis and further excludes casuals from paid leave.

Given the National Employment Standards precedence clause at Clause 7(ii) of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Health Services Union (HSU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 December 2018. The nominal expiry date of the Agreement is 31 December 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Wesley Community Services Limited T/A Wesley Mission applied to the Fair Work Commission for approval of the Wesley Mission Hospitals and HSU - NSW Enterprise Agreement 2018-2019. The Health Services Union New South Wales was the other party to the agreement. The dispute centred around whether the agreement met the necessary standards for approval under the Fair Work Act 2009. The Commission, led by Commissioner G W R Cowling, was required to determine if the agreement was in the interests of the employees and if it met the criteria for being a 'better off overall test' agreement.

The primary legal issue was whether the agreement provided genuine benefits to the employees and if it was a 'better off overall test' agreement. The Commission considered the fairness and the benefits of the agreement, taking into account the overall economic conditions and the rights and interests of the employees. The Commission examined whether the agreement provided better terms and conditions than what the employees would have received under the applicable award or registered agreement. The Commission also had to assess if the agreement complied with the procedural fairness requirements under the Fair Work Act.

The Commission concluded that the agreement was in the interests of the employees and met the criteria for being a 'better off overall test' agreement. The agreement was found to provide genuine benefits to the employees, including pay increases and improved working conditions. The Commission found that the agreement was fair and reasonable, and it complied with the procedural fairness requirements. The agreement was therefore approved under the Fair Work Act. The Commission's decision was based on the evidence presented and the benefits provided to the employees. The final orders of the Commission were that the Wesley Mission Hospitals and HSU - NSW Enterprise Agreement 2018-2019 be approved.

Wesley Community Services Limited T/A Wesley Mission

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established