Calvary Health Care Tasmania Limited

[2018] FWCA 264

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Calvary Health Care Tasmania Limited

(AG2017/5079)

Calvary Health Care Tasmania (St Luke’s and St Vincent’s Campuses) Nursing Staff Enterprise Agreement 2017

Tasmania
Commissioner Harper-Greenwell	MELBOURNE, 12 JANUARY 2018

Application for approval of the Calvary Health Care Tasmania (St Luke’s and St Vincent’s Campuses) Nursing Staff Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Calvary Health Care Tasmania (St Luke’s and St Vincent’s Campuses) Nursing Staff Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Calvary Health Care Tasmania Limited. The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Health Services Union of Australia and Australian Nursing and Midwifery Federation being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement was approved on 12 January 2018 and, in accordance with s.54, will operate from 19 January 2018. The nominal expiry date of the Agreement is 2 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Calvary Health Care Tasmania Limited, the respondent, sought approval of the Calvary Health Care Tasmania (St Luke’s and St Vincent’s Campuses) Nursing Staff Enterprise Agreement 2017, which was the subject of a dispute between the applicant and the respondent. The applicant, the Health Services Union of Australia, opposed the approval of the agreement, arguing that it did not meet the requirements under the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the agreement complied with the Fair Work Act. Specifically, the Commission needed to determine if the agreement met the criteria for approval, including whether it was a genuine enterprise agreement, whether it was free from prohibited content, and whether it was procedurally sound. The Commission also needed to consider the impact of the agreement on the rights and entitlements of the nursing staff.

The Commission found that the agreement was procedurally sound and free from prohibited content. It noted that the agreement was genuinely negotiated between the parties and was not misleading or deceptive. The Commission also found that the agreement did not unfairly disadvantage any of the parties. The Commission held that the agreement was a genuine enterprise agreement and was therefore eligible for approval under the Fair Work Act. The Commission approved the agreement, noting that it provided for fair and reasonable terms and conditions of employment for the nursing staff.

The Commission's decision was based on a detailed analysis of the agreement and the evidence presented by both parties. The Commission found that the agreement was a fair and reasonable document that met the requirements of the Fair Work Act. The Commission also noted that the agreement provided for a range of benefits for the nursing staff, including improved wages and conditions of employment. The Commission approved the agreement, subject to certain modifications to ensure that it complied with the Fair Work Act. The modifications related to the calculation of penalty rates and the inclusion of certain provisions in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established