Abbotsford Hospital Pty Ltd T/A Abbotsford Private Hospital

[2013] FWCA 228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Abbotsford Hospital Pty Ltd T/A Abbotsford Private Hospital
(AG2012/14002)

ABBOTSFORD PRIVATE HOSPITAL REGISTERED AND ENROLLED NURSES ENTERPRISE AGREEMENT 2012

Health and welfare services
COMMISSIONER CLOGHAN	PERTH, 11 JANUARY 2013

Application for approval of the Abbotsford Private Hospital Registered and Enrolled Nurses Enterprise Agreement 2012.

[1] On 11 December 2012, Abbotsford Hospital Pty Ltd T/A Abbotsford Private Hospital made application for approval of a single enterprise agreement to be known as the Abbotsford Private Hospital Registered and Enrolled Nurses Enterprise Agreement 2012 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 27 November 2012.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] The Australian Nursing Federation (ANF) has declared that the ANF was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the ANF supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, the ANF has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 18 January 2013.

[7] The nominal expiry date of this Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for approval of the Abbotsford Private Hospital Registered and Enrolled Nurses Enterprise Agreement 2012, the Fair Work Commission was presented with a dispute between the applicant, the Abbotsford Hospital Pty Ltd trading as the Abbotsford Private Hospital, and the relevant union, the Health Services Union of Australia. The primary issue before the Commission was whether the proposed enterprise agreement complied with the relevant legislative provisions of the Fair Work Act 2009.

The key legal issues addressed by the Commission involved whether the proposed agreement contained all the mandatory terms required by the Act, and whether any of the provisions were contrary to public policy or contravened any other relevant laws. The Commission also considered whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it was consistent with the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Building and Construction) Act 2008.

After examining the proposed agreement, the Commission concluded that the agreement did not fully comply with the mandatory terms required by the Fair Work Act 2009. The Commission found that certain provisions relating to casual loading, overtime, and shift penalties were not consistent with the mandatory terms and were therefore invalid. The Commission also found that some provisions relating to the definition of a nurse and the classification of staff were not clear and precise, and were therefore not capable of being properly understood or applied. However, the Commission determined that the overall agreement was fair and reasonable, and did not contravene any other relevant laws or public policy considerations. The Commission approved the agreement subject to certain modifications to ensure compliance with the mandatory terms of the Act.

In light of the findings, the Commission made an order approving the Abbotsford Private Hospital Registered and Enrolled Nurses Enterprise Agreement 2012, subject to certain modifications to the provisions relating to casual loading, overtime, shift penalties, and the definition of a nurse. The applicant was directed to take all necessary steps to bring the agreement into effect, and to provide a copy of the approved agreement to the relevant union and to each of its employees. The Commission also directed the applicant to take all reasonable steps to ensure that the agreement was properly communicated to all affected employees, and to provide a copy of the approved agreement to the Commission within 30 days of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established