Bethesda Hospital Inc

[2024] FWCA 3236

[2024] FWCA 3236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Bethesda Hospital Inc

(AG2024/3041)

BETHESDA HEALTH CARE ANF - REGISTERED NURSES’ AGREEMENT 2021

Health and welfare services
COMMISSIONER LIM	PERTH, 12 SEPTEMBER 2024

Application for approval of the Bethesda Health Care ANF - Registered Nurses’ Agreement 2021.

1. Bethesda Hospital Inc (the Applicant) has made an application for the approval of an enterprise agreement known as the Bethesda Health Care ANF - Registered Nurses’ Agreement 2021 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the

Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 19 November 2021.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 10(3)(d) of the Agreement states that “if an Employee fails to give the required notice or leaves during the notice period, the Employer may, at its discretion, deduct from any monies due to the Employee, an amount equal to the ordinary rate for the period of notice not given subject to the requirements set out at s 324(1)(b) of the Fair Work Act 2009”. As it does not specify if this deduction would be from the employee’s wages only, this raises an issue of deductions being made from the employee’s entitlements under the NES.

(b)Clause 36(4) of the Agreement provides a list of public holidays, however; it does not appear to state for any other day or part day prescribed as per s 115(1)(b) of the Act.

(c)Clause 39 of the Agreement appears to be silent on the ability to take compassionate leave in cases of stillbirth or miscarriage as provided by s 104 of the Act.

(d)Clause 44 of the Agreement provides five days of unpaid family and domestic violence leave. Section 106A of the Act provides 10 days of paid leave.

1. However, I am satisfied that with the undertakings provided, , the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement does not contain a delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2), the workplace delegates’ rights term in Clause 28A of the Nurses Award 2020 is taken to be a term of the Agreement.

1. The Australian Nursing and Midwifery Federation (ANMF) (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 12 September 2024 and, in accordance with s 54, will operate from 19 September 2024. The nominal expiry date of the Agreement is 1 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE526046  PR779147>

Annexure A