Calvary Health Care ACT Limited T/A Calvary Bruce Private Hospital

[2019] FWCA 7158

[2019] FWCA 7158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Calvary Health Care ACT Limited T/A Calvary Bruce Private Hospital
(AG2019/3064)

CALVARY BRUCE PRIVATE HOSPITAL HEALTH PROFESSIONALS AND SUPPORT SERVICES ENTERPRISE AGREEMENT 2019

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 17 OCTOBER 2019

Application for approval of the Calvary Bruce Private Hospital Health Professionals and Support Services Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Calvary Bruce Private Hospital Health Professionals and Support Services Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Calvary Health Care ACT Limited T/A Calvary Bruce Private Hospital. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 5 September 2019.

[3] On 20 September 2019, 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 25 September 2019. The undertaking deals with the following topics:

•  In relation to clause 17(c)(i) of the Agreement, casual employees in the classifications listed below will be paid a penalty rate of 160% of the ordinary rate of pay:

•  Wardperson/Patient Services Grade 1 Yr 1, Grade 2 Yr 1 and 2

•  CSSD Grade 1 Yr 1 (Trainee), Grade 2 Yr 1 (Aide)

•  Health Care Assistant, Grade 1 Yr 1

•  Domestic Services, New Entrant, Grade 1 Yr 1, Grade 2 Yr 1 & 2

•  In relation to clause 17(c)(i) of the Agreement, casual employees classified as Pastoral Carer (level 1 to 4) will be paid a penalty rate of 166% of the ordinary rate of pay and for work on a public holiday the penalty rate will be 261% of the ordinary rate of pay.

•  In relation to clause 16(d) of the Agreement, which concerns Part-time employees, an agreement will be reached with the Employer to work in excess of their rostered ordinary hours (Agreed hours) at the ordinary rate of pay, prior to such Agreed Hours being worked. Where such Employee is required by the Employer to work in excess of their Agreed Hours the Employee must be paid overtime in accordance with clause 21 – Overtime of the Agreement.

[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 did not express any view on 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] In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the previous name of the Applicant as well as the current name of the Applicant had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[8] The Health Services Union, 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.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2021.

COMMISSIONER

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