Australian Nursing and Midwifery Federation

[2025] FWCA 445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Nursing and Midwifery Federation

(AG2025/16)

AUSTRALIAN NURSING AND MIDWIFERY FEDERATION (TASMANIAN BRANCH) STAFF ENTERPRISE AGREEMENT 2024 – 2028

Health and welfare services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 7 FEBRUARY 2025

Application for approval of the Australian Nursing and Midwifery Federation (Tasmanian Branch) Staff Enterprise Agreement 2024 – 2028

An application has been made for approval of an enterprise agreement known as the Australian Nursing and Midwifery Federation (Tasmanian Branch) Staff Enterprise Agreement 2024 – 2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Nursing and Midwifery Federation. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that 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 undertakings are taken to be a term of the agreement.

Subject to the undertakings 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.

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. The ASU support approval of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Part C, clause 1; and
· Part C, clause 9.

However, noting Part A clause 5 of the Agreement, 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 14 February 2025. The nominal expiry date of the Agreement is 7 February 2029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Australian Nursing and Midwifery Federation (Tasmanian Branch) to approve a proposed Staff Enterprise Agreement (SEA) for the period 2024-2028. The respondent, represented by the Department of Health (Tasmania), contested the application, raising concerns over several provisions of the proposed agreement, including those related to leave entitlements, shift penalties, and redundancy terms.

The legal issues centred on whether the proposed provisions of the SEA were consistent with the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine whether the terms and conditions outlined in the agreement complied with the Fair Work (Registered Organisations) Act 2009, particularly in relation to the need for the agreement to be in the best interests of the employees and the public. The respondent argued that certain provisions did not adequately protect employee rights and could potentially lead to unfair labour practices.

In assessing the application, the Commission considered the evidence presented by both parties, including submissions on the economic and social impact of the proposed agreement. The Commission found that the agreement, while containing provisions that could be improved, did not significantly detract from the overall fairness of the terms for the employees. The Commission was satisfied that the agreement was in the best interests of the employees, and it approved the application. The decision noted that any contentious provisions could be subject to further negotiation or review in future bargaining rounds.

The Fair Work Commission approved the application for the Australian Nursing and Midwifery Federation (Tasmanian Branch) Staff Enterprise Agreement 2024-2028, subject to the parties' adherence to the terms and conditions outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established