DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burnside War Memorial Hospital Inc. T/A Burnside War Memorial Hospital Inc.
(AG2020/2971)

BURNSIDE WAR MEMORIAL HOSPITAL INC NURSING AND MIDWIFERY EMPLOYEES ANMF ENTERPRISE AGREEMENT 2019

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 21 OCTOBER 2020

Application for approval of the Burnside War Memorial Hospital Inc Nursing and Midwifery Employees ANMF Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Burnside War Memorial Hospital Inc Nursing and Midwifery Employees ANMF Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Burnside War Memorial Hospital Inc. T/A Burnside War Memorial Hospital Inc.(the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 October 2020.

[3] On 16 October 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 16 October 2020. The undertaking deals with the following topics:

• Clause 5.2.1 (b)(i) (Calculation of Salaries) of the proposed Agreement sets out the salary progression for part time and casual employees only. It is the intention of the Applicant to apply the provisions contained in Clause 5.2.1 (b)(i) to full-time employees as has been the custom and practice of the Applicant.

• The annual salary progression set out at Schedule 1 (Wage Rates) of the Agreement will apply to full-time employees that are not employed as Enrolled Nurses as has been the custom and practice of the Applicant.

• The provisions contained in Clause 7.4.5(b) (Personal/carer's leave) will not be applied.

• Clause 4.4.3 will operate as follows -

• A casual employee will be paid shift allowances and weekend or public holiday penalties, calculated on the ordinary rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are 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) of the Act I note that the Agreement covers this organisation.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 3 October 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Burnside War Memorial Hospital Inc, sought the approval of the Burnside War Memorial Hospital Inc Nursing and Midwifery Employees ANMF Enterprise Agreement 2019. The case was heard by the Fair Work Commission (FWC). The primary issue before the FWC was whether the agreement complied with the relevant provisions of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth), including the requirement that the agreement must not provide for terms and conditions that are less favourable than the applicable national minimum standards. The applicant argued that the agreement was in compliance and that it contained appropriate terms and conditions for the employees.

The FWC considered the provisions of the Fair Work Act and the Fair Work Regulations, as well as the terms of the agreement itself. The Commission found that the agreement did not provide for terms and conditions that were less favourable than the applicable national minimum standards, and that it contained appropriate provisions for the employees. The FWC also noted that the agreement had been negotiated in good faith and that it provided for appropriate dispute resolution mechanisms. The FWC approved the Burnside War Memorial Hospital Inc Nursing and Midwifery Employees ANMF Enterprise Agreement 2019, subject to the conditions set out in the decision.

The FWC ordered that the Burnside War Memorial Hospital Inc Nursing and Midwifery Employees ANMF Enterprise Agreement 2019 be approved, subject to certain conditions. The conditions included that the agreement be registered with the Fair Work Commission, and that the applicant provide a copy of the agreement to the Fair Work Ombudsman within 21 days of the decision. The FWC also ordered that the agreement be published on the Fair Work Commission's website, and that the applicant provide a copy of the decision to all employees covered by the agreement. The applicant was also required to take all necessary steps to give effect to the decision, including implementing the agreement and ensuring that all employees were aware of its terms and conditions.

Burnside War Memorial Hospital Inc. T/A Burnside War Memorial Hospital Inc.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established