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

Printed by authority of the Commonwealth Government Printer

Calvary Health Care ACT Limited, trading as Calvary Bruce Private Hospital, applied to the Fair Work Commission for approval of the Calvary Bruce Private Hospital Health Professionals and Support Services Enterprise Agreement 2019. The dispute arose under the Fair Work Act 2009, as the agreement had been negotiated by the union and employer but required formal endorsement to become legally binding. The union, Health Services Union of Australia, sought to ensure the agreement's terms were fair and met the requirements of the Act.

The legal issues before the Commission included whether the agreement complied with the statutory obligations set out in the Fair Work Act, including provisions related to the agreement's coverage, the bargaining process, and the fairness of its terms and conditions. The Commission also examined if the agreement adequately covered minimum entitlements, procedural fairness, and whether any terms were unfair under the Act. The application needed to demonstrate that the agreement was fairly negotiated and did not unfairly discriminate against any employee.

The Commission found that the agreement was fairly negotiated and met the statutory requirements of the Fair Work Act. The Commission confirmed that the agreement provided for minimum entitlements and did not contain any terms that were unfair within the meaning of the Act. The process followed by the parties was deemed procedurally fair, and the terms of the agreement were considered reasonable and in line with the principles of the Act. The Commission approved the agreement, finding it to be a lawful and fair enterprise agreement for the purposes of the Act.

The Fair Work Commission approved the Calvary Bruce Private Hospital Health Professionals and Support Services Enterprise Agreement 2019, effective from the date of the decision. The Commission found the agreement to be fair and compliant with the statutory requirements, and it was thus approved for registration under the Fair Work Act.

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

DECISION

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Background to the litigation

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Reasons for decision

Legal Principle Established