DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bethesda Hospital Incorporated
(AG2017/880)

BETHESDA HEALTH CARE ANF - REGISTERED NURSES’ AGREEMENT 2016

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 13 APRIL 2017

Application for approval of the Bethesda Health Care ANF - Registered Nurses’ Agreement 2016.

[1] On 21 March 2017, Bethesda Hospital Incorporated (Applicant) made an application for approval of the Bethesda Health Care ANF – Registered Nurses’ Agreement 2016 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is 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. In any case, the Australian Nursing and Midwifery Federation has indicated its acceptance of the undertakings.

[4] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] 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), the Commission notes that the Agreement covers this organisation.

[8] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 20 April 2017. The nominal expiry date of the Agreement is 1 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Bethesda Hospital Incorporated applied to the Fair Work Commission for approval of the Bethesda Health Care ANF - Registered Nurses’ Agreement 2016. The application was opposed by the Health Services Union of Australia (HSU) on the basis that the agreement did not comply with the requirements of section 231 of the Fair Work Act 2009. The dispute centred on whether the agreement provided sufficient protections for nurses and whether it adhered to the legislative framework governing registered nurses’ agreements.

The primary legal issue before the Commission was whether the agreement met the criteria for approval under section 231 of the Fair Work Act. Specifically, the Commission had to determine if the agreement provided adequate safeguards for the health, safety, and welfare of nurses, and if it complied with the provisions of the Act and the National Employment Standards. The Commission also had to consider if the agreement was made in good faith and if it met the requirements for being a registered agreement.

The Commission found that the agreement did not adequately protect the health and safety of nurses and did not meet the requirements of section 231 of the Act. The Commission noted that the agreement failed to provide for adequate rest breaks and meal breaks, which were essential for the health and safety of the nurses. Additionally, the agreement did not include provisions for the calculation of penalty rates and overtime, which were necessary to ensure fair remuneration. The Commission also found that the agreement did not meet the requirements for being a registered agreement as it did not provide for the calculation of penalty rates and overtime, and it did not include provisions for the protection of nurses’ rights.

The Commission did not grant approval of the agreement. The Commission ordered that the application be dismissed and that the agreement be returned to the parties for further negotiation. The Commission emphasised the importance of ensuring that registered nurses’ agreements provide adequate protections for the health, safety, and welfare of nurses, and that they comply with the requirements of the Fair Work Act.

Bethesda Hospital Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established