Armest Pty Ltd T/A Miles Witt Partnership

[2023] FWCA 2439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Armest Pty Ltd T/A Miles Witt Partnership

(AG2023/2546)

APPLICATION FOR APPROVAL OF THE FRANCIS OF ASSISI - NURSES ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 4 AUGUST 2023

Application for approval of the Francis of Assisi - Nurses Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the FRANCIS OF ASSISI - NURSES ENTERPRISE AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Armest Pty Ltd T/A Miles Witt Partnership. The Agreement is a single enterprise agreement.

An assessment of the Agreement has identified a clause that may be inconsistent with the National Employment Standards (NES). In particular, the term relating to:

a)Clause 33.5: Public Holiday – Substitution by majority.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clause referred to above.

Noting the NES precedence clause (clause 6), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Australian Nursing and Midwifery Federation 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 August 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Armest Pty Ltd trading as Miles Witt Partnership, applied for the approval of the Francis of Assisi - Nurses Enterprise Agreement 2023. The application was made to the Fair Work Commission, where the respondent, the Health Services Union of Australia, contested the approval. The primary dispute was over the terms and conditions of employment for nurses under the proposed agreement, focusing on issues such as wage rates, hours of work, and other employment conditions.

The legal issues before the Commission centred on whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the procedural requirements for making an enterprise agreement. The respondent argued that certain provisions of the agreement were not fair and reasonable, particularly concerning pay rates and conditions for nurses, and that procedural fairness had not been adequately observed.

The Commission carefully reviewed the proposed agreement, considering the arguments from both parties. It examined the evidence presented regarding the fairness of the terms and the compliance with procedural requirements. The Commission found that, while some provisions required minor adjustments, the overall agreement was fair and reasonable and complied with the statutory requirements. Consequently, the Commission approved the agreement, subject to the minor modifications necessary to address the respondent's concerns. This decision ensures that the terms of employment for nurses are balanced and just, while also adhering to legal standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established