Australian College Of Nursing Ltd

[2024] FWCA 3017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian College Of Nursing Ltd

(AG2024/2724)

AUSTRALIAN COLLEGE OF NURSING ENTERPRISE AGREEMENT 2024 – 2028

Educational services
DEPUTY PRESIDENT BOYCE	SYDNEY, 16 AUGUST 2024

Application for approval of the Australian College of Nursing Enterprise Agreement 2024 – 2028

An application has been made for approval of an enterprise agreement to be known as the Australian College of Nursing Enterprise Agreement 2024 – 2028 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Australian College Of Nursing Ltd (Employer). The Agreement is a single enterprise agreement.

NERR issue

There was an issue raised by the Commission with the Employer regarding the use of a watermark header for the publication of Notice of Employee Representational Rights (NERR) provided to relevant employees.[1] Having regard to the submissions of the Employer dated 12 August 2024, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Educational Services (Post-Secondary Education) Award 2020 is taken to be a term of the Agreement.

Conclusion

I am satisfied that each of the requirements of ss.186, 187, 188 and 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 August 2024. The nominal expiry date of the Agreement is 16 August 2028.

DEPUTY PRESIDENT

[1] Note the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Australian College of Nursing Limited sought approval for the Australian College of Nursing Enterprise Agreement 2024 – 2028. The application was made to the Fair Work Commission under the Fair Work Act 2009. The College, which operates as an employer of nursing professionals, was looking to formalise terms and conditions for its employees within this period. The dispute centred on whether the proposed agreement met the statutory requirements for modern awards and whether it provided fair and reasonable terms for the employees.

The legal issues addressed by the Court involved scrutinising the agreement to ensure it adhered to the criteria set forth in the Fair Work Act. These included determining if the agreement covered all necessary terms, if it was free from prohibited content, and if it was procedurally sound. The Court also examined whether the agreement provided terms and conditions that were no less favourable than those provided by the relevant modern award. Additionally, the Court considered if the agreement was consistent with the public interest and if the procedural fairness was upheld.

The Fair Work Commission found that the proposed agreement was in compliance with the legislative requirements. The Court noted that the agreement contained all necessary terms and was free from prohibited content. It was procedurally sound, providing fair and reasonable terms for the employees, and it did not result in terms and conditions that were less favourable than those provided by the relevant modern award. The Court also determined that the agreement was consistent with the public interest and procedural fairness was maintained. Therefore, the application for approval was granted.

The final orders included the approval of the Australian College of Nursing Enterprise Agreement 2024 – 2028, subject to the terms and conditions set out in the agreement. The Court mandated that the agreement would commence on the effective date specified within the agreement, and it would apply to all employees of the Australian College of Nursing who are covered by the agreement. The Fair Work Commission emphasised the importance of adherence to the terms and conditions set out in the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established