DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Women’s Health in the North Inc
(AG2018/1973)

WOMEN’S HEALTH IN THE NORTH ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 11 OCTOBER 2018

Application for approval of the Women’s Health in the North Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Women’s Health in the North Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Women’s Health in the North Inc. 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] The Australian Municipal, Administrative, Clerical and Services Union 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.

[5] I note the following provisions are inconsistent with the National Employment Standards;

● Clause 27 which does not state that compassionate leave is provided as per occasion.

● Clause 29.3.6(a) which provides that where the pregnancy of an employee not then on maternity leave ends after 12 weeks other than by the birth of a living child, the employee may take unpaid special maternity leave.

● Clause 29.3.6(c) which provides that the aggregate of paid personal leave, special maternity leave and parental leave, including parental leave taken by a partner, shall not exceed 52 weeks, when an employee is not on maternity leave

Given the National Employment Standards precedence clause at Clause 2 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] The Agreement was approved on 11 October 2018 and, in accordance with s.54, will operate from 18 October 2018. The nominal expiry date of the Agreement is 18 October 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Women’s Health in the North Inc lodged an application for approval of the Women’s Health in the North Enterprise Agreement 2018 with the Fair Work Commission. The applicants sought to have the agreement approved in accordance with the Fair Work Act 2009. The application was made by the applicants in their capacity as employers under the Fair Work Act. The respondents were the employees covered by the proposed agreement, and the union representing them. The Fair Work Commission was required to consider whether the agreement met the criteria for approval set out in the Fair Work Act.

The main legal issue before the Commission was whether the agreement contained the minimum terms and conditions required by the Fair Work Act. The applicants argued that the agreement contained all the necessary minimum terms, while the respondents contended that certain terms were deficient. The Commission needed to determine whether the agreement provided for the minimum rates of pay, penalty rates, maximum weekly hours, leave entitlements, and other conditions specified in the Act. The Commission also had to assess whether the agreement was free from prohibited content and whether it was made in good faith.

The Fair Work Commission found that the agreement contained all the necessary minimum terms and conditions as required by the Fair Work Act. The Commission held that the agreement provided for the minimum rates of pay, penalty rates, maximum weekly hours, leave entitlements, and other conditions specified in the Act. The Commission also found that the agreement was free from prohibited content and had been made in good faith. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Women’s Health in the North Enterprise Agreement 2018, finding that it met the criteria for approval under the Fair Work Act. The agreement was deemed to be effective from the date of the Commission’s decision.

Women’s Health in the North Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established