Burles Consulting Pty Ltd Summary

[2024] FWCA 2705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Burles Consulting Pty Ltd

(AG2024/2324)

THE HOBART CLINIC NURSES ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 8 AUGUST 2024

Application for approval of The Hobart Clinic Nurses Enterprise Agreement 2023

Burles Consulting Pty Ltd (the Applicant) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as The Hobart Clinic Nurses Enterprise Agreement 2023 (the Agreement). The Hobart Clinic Association is the Employer covered by the Agreement.

The Health Services Union and the Australian Nursing and Midwifery Federation, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement defines a shift worker at clause 7. The Applicant has confirmed that shift worker as defined in clause 7 applies for the purposes of the additional week of annual leave provided to shift workers under the National Employment Standards (NES).

Clause 29 of the Agreement, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with s.104 of the Act. However, noting clause 6 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 Employer provided an undertaking that clause 24(f)(i)(2), relating to payments on public holidays, will not apply. Instead, the Employer has provided an undertaking expanding clause 24(f)(i)(3) to grant employees double time rates on all public holidays falling from Monday to Sunday.

The Agreement does not clearly set out the rates casual employees receive for weekend work or overtime, including whether the weekend and penalty rates compound with casual loading as required under the Nurses Award 2020 (the Award). The Employer provided an undertaking to address this issue.

The Agreement does not provide for accrued days off (ADOs) to be paid out on termination, contrary to the Award. The Employer provided an undertaking to resolve this issue.

The Employer provided a further pre-emptive undertaking which entitles shift workers to double time for work performed on Sundays. They submit that this entitlement was not included in the agreement as an oversight but was offered to its staff. This undertaking purports to operate in place of clause 24(e)(xi) of the Agreement.

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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 August 2024. The nominal expiry date of the Agreement is 30 September 2026.

COMMISSIONER
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Annexure A

In the matter of Burles Consulting Pty Ltd, the applicant, and The Hobart Clinic Nurses Enterprise Agreement 2023, the dispute involved an application for the approval of a proposed enterprise agreement. The Fair Work Commission heard the matter, tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The applicant, Burles Consulting Pty Ltd, sought the approval of the agreement on behalf of the employees of The Hobart Clinic. The Commission needed to assess if the agreement was made in good faith, provided for a fair and efficient workplace, and complied with the relevant legislative provisions.

The primary legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval. This involved examining if the agreement was genuinely negotiated, if it provided for minimum terms and conditions, and if it complied with the procedural fairness requirements of the Act. Additionally, the Commission had to consider if the agreement contained terms that were not reasonably capable of being part of an enterprise agreement, such as those that were in breach of the Act or contrary to public policy.

The Fair Work Commission determined that the proposed agreement met the necessary criteria for approval. The Commission found that the agreement had been genuinely negotiated between the parties and contained provisions that were fair and efficient. The terms of the agreement were compliant with the Act and did not contravene any public policy considerations. The procedural fairness requirements were also satisfied, as the agreement was made following appropriate consultation and disclosure processes. Consequently, the Commission approved the agreement, recognising it as a valid and enforceable enterprise agreement between the parties.

Burles Consulting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established