Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania

[2013] FWCA 865

[2013] FWCA 865

FAIR WORK COMMISSION

DECISION

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

Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania
(AG2012/14411)

CALVARY HEALTH CARE TASMANIA NURSING STAFF (ST LUKE'S CAMPUS AND ST VINCENT'S CAMPUS) ENTERPRISE AGREEMENT 2012

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 7 FEBRUARY 2013

Application for approval of the Calvary Health Care Tasmania Nursing Staff (St Luke's Campus and St Vincent's Campus) Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Calvary Health Care Tasmania Nursing Staff (St Luke's Campus and St Vincent's Campus) Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania. The Agreement is a single-enterprise agreement.

[2] The Australian Nursing Federation and Health Services Union, Tasmania No. 1 Branch, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that each wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers both organisations.

[3] On 15 January 2013, I conducted a telephone conference of the parties to seek clarification about aspects of the agreement. A hearing was subsequently conducted on 6 February 2013 during which the terms of certain undertakings proposed by the employer were considered. Each of the employee bargaining representatives opposed and/or sought modification to two of the undertakings.

[4] Having considered the proposed undertakings and the views of each of the bargaining representatives, I have determined to accept the following formal written undertakings: 1

The employer undertakes THAT:

1. To afford clarity in regard to the payment of casuals that work on a public holiday the following subclause is to be included in the Agreement at Clause 34 (f):

“Provided that a casual employee shall be paid at the rate of 1.7 times the base casual loaded rate of pay for time worked on a public holiday. The base casual loaded rate of pay includes the applicable transitioning casual loading, is defined at Clause 18(b) of this Agreement”.

2. As stated at Clause 27(a) employees are entitled to parental leave in accordance with the provisions of the Fair Work Act 2009 (“the FW Act). Clause 27(c)(iii)(13) of the Agreement deals with transfer to safe job for persons who are eligible for maternity leave. This subclause is underpinned by the NES, specifically s.81(3)(a) of the FW Act, and does not displace this section which states that “if there is an appropriate safe job available - the employer must transfer the employee to that job for the risk period, with no other change to the employee’s terms and conditions of employment”.

3. For clarity the reference to “ordinary rate” within the Agreement shall mean the base rate of pay for the employee’s classification. The annual base rates of pay are set out in Appendix B of the Agreement.

4. A copy of these undertakings will be affixed to all copies of this Agreement distributed by the employer and the respective union covered by this Agreement.

[5] I have accepted these undertakings pursuant to s.190 of the Act and as a result, they are taken to be a term of the Agreement.

[6] I note also that undertaking 2 above does not purport to comprehensively deal with all of the NES provisions applicable to parental leave. This includes the obligations for “paid no safe job leave during risk period” as may be applicable in certain circumstances pursuant toss.81(3) and (6) of the Act. As with all of the provisions of the Agreement dealing with NES related conditions, parties will need to consider the full import of the NES in applying those provisions.

[7] I have not accepted an undertaking proposed by the employer in relation to clause 25(a) and (b) and clause 42(d) of the Agreement. These provisions may be of no effect and/or not be enforceable under the Act to the extent that they permit deductions from wages due to an employee without specific employee authorisation. I will subsequently issue reasons for not accepting an undertaking on those matters in the circumstances of this matter.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2013. The nominal expiry date of the Agreement is 2 July 2014.

COMMISSIONER

 1   The undertakings were provided to the Commission in writing and signed by the employer in accordance with the Act and relevant regulations.

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<Price code J, AE899760  PR533882>