DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Westmead Rehabilitation Hospital Pty Ltd
(AG2016/4857)

WESTMEAD REHABILITATION HOSPITAL & HSU-NSW ENTERPRISE AGREEMENT 2016 - 2018

Health and welfare services
COMMISSIONER JOHNS	SYDNEY, 27 SEPTEMBER 2016

Application for approval of the Westmead Rehabilitation Hospital & HSU-NSW Enterprise Agreement 2016 - 2018.

[1] On 2 August 2016 Westmead Rehabilitation Hospital Pty Ltd (Applicant) made an application for approval of the Westmead Rehabilitation Hospital & HSU-NSW Enterprise Agreement 2016 - 2018 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Commission is satisfied that each of the requirements of ss 186, 187 and 188 of the Act, as are relevant to this application for approval, has 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 of Australia, 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), the Commission notes that the Agreement covers this organisation.

[6] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 4 October 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter in Westmead Rehabilitation Hospital Pty Ltd was heard in the Fair Work Commission, where the application for approval of the Westmead Rehabilitation Hospital and Health Services Union New South Wales Enterprise Agreement 2016-2018 was brought forth. The primary dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009, specifically focusing on provisions that might contravene the provisions related to pay equity and penalty rates.

The key legal issues that the Commission needed to address included whether the enterprise agreement adequately provided for minimum pay rates and conditions, and if it complied with the statutory requirement for pay equity between employees performing work of equal or comparable value. Furthermore, the Commission had to ensure that the agreement did not unfairly disadvantage any class of employees and that it complied with the procedural fairness requirement.

In its reasoning, the Fair Work Commission examined the provisions of the agreement in detail. It determined that while the agreement largely met the minimum pay rates and conditions, certain clauses regarding penalty rates and shift loadings did not comply with the statutory provisions. The Commission found that these clauses did not adequately address the pay equity requirement for employees performing work of equal or comparable value. Additionally, it was determined that the agreement did not provide sufficient protections for employees in terms of procedural fairness. Consequently, the Commission refused to approve the enterprise agreement as it stood, citing non-compliance with the Fair Work Act 2009.

The final orders issued by the Commission mandated that the parties revisit the agreement to address the deficiencies highlighted. Specifically, the hospital and the union were required to renegotiate the clauses pertaining to penalty rates, shift loadings, and procedural fairness to ensure compliance with the statutory requirements before resubmitting the agreement for approval.

Westmead Rehabilitation Hospital Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established