Baxter Renal Care Services Pty Ltd

[2022] FWCA 3216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Baxter Renal Care Services Pty Ltd

(AG2022/3575)

Baxter Renal Care Services Pty Ltd Nursing Enterprise Agreement 2021 - 2023

Health and welfare services
COMMISSIONER MATHESON	SYDNEY, 15 SEPTEMBER 2022

Application for approval of the Baxter Renal Care Services Pty Ltd Nursing Enterprise Agreement 2021 - 2023.

An application has been made for approval of an enterprise agreement known as the Baxter Renal Care Services Pty Ltd Nursing Enterprise Agreement 2021 - 2023 (Agreement). The application was made by Baxter Renal Care Services Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The application was not lodged within 14 days after the Agreement was made. The Commission sought submissions addressing this. Pursuant to s.185(3)(b) of the Act, in all the circumstances and having considered the submissions of the Applicant, I consider it fair to extend the time for making the application to the date it was made, being 26 August 2022, and grant the extension until this date.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Regulations is taken to be a term of the Agreement.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement 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 22 September 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the case involved Baxter Renal Care Services Pty Ltd, which sought approval for the Baxter Renal Care Services Pty Ltd Nursing Enterprise Agreement 2021 - 2023. The Commission was tasked with determining whether the agreement met the criteria under the Fair Work Act 2009. The application for approval was not lodged within the 14-day window required by the Act, and there were issues with the signature page of the application. The Applicant subsequently provided an amended signature page and sought an extension and waiver of the procedural irregularities.

The legal issues before the Commission included whether to grant an extension for the late application, whether to waive the procedural irregularity in the signature page, and whether to accept the written undertakings provided by the Applicant. The Commission also had to consider whether the agreement met all relevant requirements under the Fair Work Act, including the effect of the agreement on the bargaining representatives and the incorporation of the model flexibility term.

The Commission determined that it was fair to grant an extension for the late application and to waive the procedural irregularity in light of the submissions and the overall circumstances. The Commission found that accepting the written undertakings would not result in financial detriment to employees or substantial changes to the agreement. The Commission was satisfied that all relevant requirements under the Fair Work Act were met, including the coverage of the bargaining representative, and approved the agreement. The agreement was set to operate from 22 September 2022, with a nominal expiry date of 30 June 2023.

The final orders of the Commission were that the Baxter Renal Care Services Pty Ltd Nursing Enterprise Agreement 2021 - 2023 was approved and would commence on 22 September 2022. The Commission granted an extension for the late application, waived the procedural irregularity, accepted the written undertakings, and incorporated the model flexibility term into the agreement. The agreement was to be effective until 30 June 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established