Bathurst Private Hospital Pty Ltd T/A Bathurst Private Hospital Pty Ltd

[2024] FWCA 2271

[2024] FWCA 2271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bathurst Private Hospital Pty Ltd T/A Bathurst Private Hospital Pty Ltd

(AG2024/1644)

BATHURST PRIVATE HOSPITAL AND NSWNMA/ANMF ENTERPRISE AGREEMENT 2024-2025

Health and welfare services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 19 JUNE 2024

Application for approval of the Bathurst Private Hospital and NSWNMA/ANMF Enterprise Agreement 2024-2025

Introduction

1. Bathurst Private Hospital Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Bathurst Private Hospital and NSWNMA/ANMF Enterprise Agreement 2024-2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06 Requirements

1. The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Submissions by the Parties

1. The employer and the Australian Nursing and Midwifery Federation (ANMF) have provided joint written submissions to the Commission responsive to issues identified in relation to this Agreement, which I have considered and rely upon in the approval of this Agreement.

Notice of Employee Representational Rights (NERR)

1. The NERR issued to Employees referred to the Agreement’s title as “Batthurst Private Hospital and NSWNMA/ ANMF Enterprise Agreement” [sic]. The Employer provided submissions that this matter constituted a minor technical error. The Agreement’s title clause indicates that its title is “Bathurst Private Hospital and NSWNMA/ANMF Enterprise Agreement 2024 – 2025”.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards (NES) precedence term

1. Clause 41.3(a) of the Agreement provides that: “If an employee fails to give the required notice, they may forfeit any monies due to them at termination under the Agreement or the NES, an amount not exceeding the amount the employee would have been paid under the Agreement in respect to the period of notice required.” The effect of this clause does not appear to limit the source of monies which may be withheld or deducted, and accordingly appears to permit the employer to withhold or deduct monies owing to the employee under the NES (such as accrued but unused annual leave on termination), which may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 31.5 provides that: “The employer and employees may, by agreement, substitute another day for a public holiday.” This clause may not be consistent with s.115(3) of the Act, which provides that an employer and an individual employee may agree on the substitution of a day or part-day of a public holiday.

1. To the extent that the above clauses are not consistent with the NES, I note that in accordance with the NES precedence term in Clause 5 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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.

Recall to Duty When On-Call at Premises

1. On 5 June 2024, the Commission wrote to the employer seeking confirmation as to whether the employer recalls employees to duty to work in circumstances where an employee is on-call at the employer’s premises, and subsequently received confirmation that the employer:

   ·     Does not recall employees to duty while they are on-call at the employer’s premises; and,

   ·     Does not have any intention to recall employees to duty while they are on-call at the employer’s premises.

Section 186, 187, 188 and 190

1. 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.

Section 183 Bargaining Representatives

1. The ANMF, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the ANMF.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 June 2024. The nominal expiry date of the Agreement is 30 June 2025.

Variation

1. During the process of assessing the Agreement for approval, the Commission identified that Clause 42.1(a)(iv) – Redundancy referred to apprentices. The Employer confirmed that it does not hire apprentices and sought that the words “(other than an apprentice)” be deleted from the Agreement.

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.

1. I am satisfied that the error listed in [15] above is a defect within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error (PR776177). The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 26 June 2024.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

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