Women's Health In The North Inc T/A Women's Health In The North Inc

[2024] FWCA 2702

[2024] FWCA 2702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Women’s Health In The North Inc T/A Women’s Health In The North Inc

(AG2024/2255)

WOMEN’S HEALTH IN THE NORTH ENTERPRISE AGREEMENT 2024.

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 24 JULY 2024

Application for approval of the Women’s Health In the North Enterprise Agreement 2024

1. Women’s Health in the North Inc (the Employer) made an application pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Women’s Health In the North Enterprise Agreement 2024 (the Agreement).

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU), 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.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023. Given the notification time for the Agreement was 3 March 2022, the transitional arrangements for the Amending Act provide that the genuine agreement requirements in Part 2-4 of the Act as they stood just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 6 June 2024 the better off overall test provisions in Part 2-4 of the Act as amended on 6 June 2023 apply.

1. The Agreement title on the Notice of Employee Representational Rights that was issued to the employees was the “Women’s Health In the North Enterprise Agreement 2022” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(2) of the Act to disregard this error.

1. At a case management conference on 11 July 2024, I raised a number of concerns with the parties regarding whether:

   ·     The Agreement was better off overall when compared to the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award); and

   ·     Certain provisions were consistent with the National Employment Standards.

1. The Employer has provided an undertaking addressing each of these concerns. In summary these matters are as follows.

1. It was unclear under the Agreement whether Award overtime provisions or the time off in lieu provisions were intended to apply in situations where an employee was asked to work outside their ordinary hours. The Employer has provided an undertaking clarifying that an Employee may choose to be paid overtime in accordance with the Award instead of taking time off in lieu. The Employer has further provided an undertaking addressing the payment of meal breaks.

1. The Employer has provided an undertaking that clause 18.5 Flexible Working Hours and Flexitime Accruals will not apply when an employee is required to work outside the ordinary spread of hours or ordinary hours of work.  

1. The Agreement is silent on rates of pay for apprentices and trainees. The Employer submitted that it does not currently employ apprentices or trainees, and provided an undertaking to address this issue if it were to employ them in the future.

1. The definition of immediate family member in clause 26 may be more restrictive than that provided by the NES. The Employer provided an undertaking to address this issue.

1. The notice requirements when taking personal or carer’s leave in Clauses 26.8, 26.9.1, and 27.3 appear to be more restrictive than the notice requirements under the NES. The Employer provided an undertaking to address this issue.

1. A copy of the undertakings is attached in Annexure A. I am satisfied that the commitments made in 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. The commitments in the undertakings are taken to be terms of the agreement.

1. Subject to the undertaking 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 July 2024. The nominal expiry date of the Agreement is 24 July 2027.

COMMISSIONER

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Annexure A