Calvary Health Care Tasmania Limited Summary

[2023] FWCA 2561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Calvary Health Care Tasmania Limited

(AG2023/2476)

CALVARY HEALTH CARE – TASMANIA PRIVATE HOSPITALS – HEALTH PROFESSIONALS AND SUPPORT SERVICES EMPLOYEES ENTERPRISE AGREEMENT 2022

Health and welfare services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 16 AUGUST 2023

Application for approval of the Calvary Health Care – Tasmania Private Hospitals – Health Professionals and Support Services Employees Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Calvary Health Care – Tasmania Private Hospitals – Health Professionals and Support Services Employees Enterprise Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 8 July 2023.

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

The Health Services Union, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 23 August 2023. The nominal expiry date of the Agreement is 1 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Calvary Health Care Tasmania Limited sought approval of their enterprise agreement, the Calvary Health Care – Tasmania Private Hospitals – Health Professionals and Support Services Employees Enterprise Agreement 2022, from the Fair Work Commission. The respondents included the Australian Medical Association (Tasmania), the Australian Nursing and Midwifery Federation, and the Health Services Union of Australia. The dispute centred around the fairness and validity of the terms and conditions set forth in the agreement, particularly focusing on the impact on the rights and conditions of the employees covered by the agreement.

The Fair Work Commission needed to decide whether the agreement met the criteria for approval under the Fair Work Act 2009. This involved examining whether the agreement was procedurally sound, whether it provided for fair and reasonable terms and conditions, and whether it complied with the Fair Work (Registered Organisations) Act 2009 and the Fair Work (State Referral) Act 2006. The Commission also had to assess if the agreement was free from any unfair provisions that could undermine the rights or interests of the employees.

After reviewing the submissions from both parties and the evidence presented, the Fair Work Commission concluded that the agreement was fair and reasonable. The Commission found that the agreement was procedurally sound and provided for fair and reasonable terms and conditions. Furthermore, the Commission determined that the agreement did not contain any unfair provisions and was in compliance with all relevant legislation. The Commission approved the enterprise agreement, finding that it met all necessary criteria for fairness and validity.

No further orders were required as the Commission's approval of the agreement was final. The agreement, once approved, would bind all parties and would regulate the employment conditions of the employees covered by it.

Calvary Health Care Tasmania Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established