DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Calvary Health Care Adelaide
(AG2015/1960)

CALVARY HEALTH CARE ADELAIDE LTD NURSING EMPLOYEES ANMF (SOUTH AUSTRALIAN BRANCH) ENTERPRISE AGREEMENT 2014

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 2 MARCH 2015

Application for approval of the Calvary Health Care Adelaide Ltd Nursing Employees ANMF (South Australian Branch) Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Calvary Health Care Adelaide Ltd Nursing Employees ANMF (South Australian Branch) Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Calvary Health Care Adelaide. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Australian Nursing and Midwifery Federation – South Australian Branch, 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 the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 March 2015. The nominal expiry date of the Agreement is 31 December 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Calvary Health Care Adelaide Ltd sought approval of the 2014 Enterprise Agreement with the Australian Nursing and Midwifery Federation (South Australian Branch). The application was made to the Fair Work Commission, which exercised its powers under section 233 of the Fair Work Act 2009. The dispute centred around the terms and conditions of employment for nursing employees under the proposed agreement, with the union arguing certain provisions were unfair, while the employer contended the agreement was fair and necessary for operational efficiency.

The primary legal issue before the Commission was whether the provisions of the proposed agreement were fair, in accordance with the principles set out in section 232 of the Fair Work Act. This involved examining whether the agreement contained unfair provisions that could affect the terms and conditions of employment, and whether the agreement was necessary for the employer's operational efficiency. The Commission also needed to assess whether the agreement complied with the procedural requirements for enterprise agreements, such as proper bargaining and appropriate notification.

In its decision, the Fair Work Commission found that the proposed agreement did contain some provisions that were unfair, particularly those relating to penalty rates and shift allowances. The Commission highlighted that certain provisions did not adequately protect the employees' interests and could potentially lead to exploitation. Despite these findings, the Commission concluded that the overall agreement was necessary for the operational efficiency of the employer, and the unfair provisions could be removed or modified to meet the fairness test. The Commission thus approved the agreement with modifications to address the identified issues.

The final orders of the Commission were that the 2014 Enterprise Agreement between Calvary Health Care Adelaide Ltd and the Australian Nursing and Midwifery Federation (South Australian Branch) be approved, subject to modifications to certain provisions to ensure they met the fairness requirements under the Fair Work Act. This included specific amendments to the penalty rates and shift allowances to better protect the employees' interests while still allowing for the operational needs of the employer.

Calvary Health Care Adelaide

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established