Calvary Private Health Care Canberra Limited T/A Calvary John James Hospital

[2024] FWCA 4195

[2024] FWCA 4195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Calvary Private Health Care Canberra Limited T/A Calvary John James Hospital

(AG2024/4344)

CALVARY HEALTH CARE – JOHN JAMES PRIVATE HOSPITAL – NURSES AND MIDWIVES ENTERPRISE AGREEMENT 2024 – 2026.

Health and welfare services
COMMISSIONER REDFORD	MELBOURNE, 10 DECEMBER 2024

Application for approval of the Calvary Health Care – John James Private Hospital – Nurses and Midwives Enterprise Agreement 2024 – 2026

1. An application has been made for approval of an enterprise agreement known as the Calvary Health Care – John James Private Hospital – Nurses and Midwives Enterprise Agreement 2024 – 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Calvary John James Hospital. The Agreement is a single enterprise agreement. 

Notice of Employee Representational Rights

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act. 

Amendments

1. In the Form F17B Declaration made in support of the application for approval of this agreement, the Employer sought that the Commission approve the agreement with amendments, pursuant to s 191A of the Act.

1. I consider it is appropriate to approve this agreement with amendments, to ensure it meets the requirements of the better off overall test.

1. In accordance with s 191A(3) of the Act, I have sought the views of the following in relation to the amendments I propose to make. No such person objected to the amendments.

a.The Employer for the agreement.

b.The award covered employees for the agreement.

c.The bargaining representatives for the agreement.

1. Attached to this decision is a copy of the agreement containing the amendments I propose to make. The amendments are:

a.To replace the reference to 150% in clause 19.4 of the agreement with “200%”

b.To insert at clause 24.1 of the agreement the following:

24.1A Additional Overtime for Part-Time Employees

In addition to the overtime criteria at clause 24.1 and remaining subject to clauses 20.5 and 20.7(b) (concerning changes to rosters), a part-time employee who is directed by Calvary to continue to work after their rostered ordinary time shift’s finish time shall be paid overtime:

(a) If the employee’s rostered ordinary time shift was less than 7.6 hours in duration, once the employee works in excess of 7.6 hours; or

(b) If the employee’s rostered ordinary time shift was 7.6 hours or more, for all hours worked  after their rostered shift’s finish time; provided

(c) When a part-time employee is working in a department where ADOs are accrued, the 7.6 hour threshold is adjusted to the shift length of full-time employees who accrue ADOs.

ILLUSTRATIVE EXAMPLES:

1. If a part time employee is working a 5 hour rostered ordinary time shift, overtime is paid for work directed after 7.6 hours, and

2. If a part time employee is working a 9 hour rostered ordinary time shift, overtime will be paid for work performed from the end of the ordinary time shift.

NOTE 1: Overtime does not accrue annual leave or personal/carer’s leave; and does not attract superannuation.

NOTE 2: For clarity, the E-learning exemption under clause 44 does not apply because it requires employee election for the exemption to be used and this clause is to cover directions by Calvary.

Consideration 

1. On the basis of the foregoing, 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. 

1. The Australian Midwifery and Nursing Federation (AMNF) 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after approval.

COMMISSIONER

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