[2013] FWCFB 7430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

VICE PRESIDENT HATCHER DEPUTY PRESIDENT BOOTH COMMISSIONER BULL

SYDNEY, 25 SEPTEMBER 2013

Appeal against decisions [2013] FWC 4969 and [2013] FWC 5338 of Deputy President Gooley at Melbourne on 24 July 2013 and 5 August 2013 in matter number AG2013/6933.

[1] This decision reproduces in edited form the reasons for decision and the order which we stated on transcript at the conclusion of the hearing of this appeal earlier today.

[2] We have decided to grant permission to appeal on the basis that, because the enterprise agreement the subject of the appeal¹ (Agreement) is based on a template used in over 60 other enterprise agreements approved by this Commission, we consider that the appeal raises public interest issues. We note in particular that the provision of the Agreement in issue in this appeal does not appear to have been addressed on any previous occasion when an enterprise agreement based on the template has been approved.

[3] The appellant has now submitted that it is prepared to offer an undertaking in terms consistent with its written appeal submissions which would resolve the issue which caused Deputy President Gooley at first instance to reject the application for approval of the Agreement. The undertaking proposed by the appellant is as follows:

“Part-time employees will not be directed to work additional hours in the absence of agreement from the employee.”

[4] The other bargaining representatives, namely the Health Services Union - New South Branch, the NSW Nurses and Midwives’ Association, and the Australian Nursing Federation - New South Wales Branch agree with that position.

[5] Accordingly, we consider that the appropriate course is to refer the matter back to Deputy President Gooley under s.607(3)(c)(ii) of the Fair Work Act 2009 on the basis that her Honour shall approve the Agreement conditional upon the said undertaking being provided, as she indicated she would do in the decision under appeal². We so order.

VICE PRESIDENT

Appearances:

P. Moorhouse of counsel for Roseneath Aged Care Centre

J. Murphy of counsel for the Health Services Union

N. Dawson solicitor for the NSW Nurses & Midwives’ Association

Hearing details:

2013.

Sydney:

25 September.

¹ Roseneath Aged Care Centre, NSWNMA & HSU NSW Branch Enterprise Agreement 2012

² [2013] FWC 4969 at [18]

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