Continence Foundation of Australia Ltd T/A Continence Foundation of Australia

[2022] FWCA 4506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Continence Foundation of Australia Ltd T/A Continence Foundation of Australia

(AG2022/4010)

Nurses (National Continence Helpline) Enterprise Agreement 2022-2025

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 21 DECEMBER 2022

Application for approval of the Nurses (National Continence Helpline) Enterprise Agreement 2022-2025

An application has been made for approval of an enterprise agreement known as the Nurses (National Continence Helpline) Enterprise Agreement 2022-2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Continence Foundation of Australia Ltd T/A Continence Foundation of Australia (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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 requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Nursing and Midwifery Federation (ANMF) lodged a Form F18 statutory declaration supporting approval of the Agreement and giving 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 ANMF.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Continence Foundation of Australia, trading as the Continence Foundation of Australia, sought approval of the Nurses (National Continence Helpline) Enterprise Agreement 2022-2025 from the Fair Work Commission (FWC). The application was made under the Fair Work Act 2009. The Foundation, a not-for-profit organisation, employs nurses who operate a National Continence Helpline, providing advice and information to the public. The application for approval of the enterprise agreement was contested by the Australian Nursing and Midwifery Federation (ANMF), which represents some of the Foundation's employees. The ANMF argued that the proposed agreement did not meet certain legal requirements and was not in the best interests of the employees.

The FWC had to determine whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act. This included assessing whether the agreement contained all the minimum terms and conditions mandated by the Act, and whether it was made in good faith. Additionally, the FWC had to consider whether the agreement would have an adverse effect on employees’ job security, wages, conditions, or terms of employment. The FWC also needed to decide if the agreement had been made in accordance with the good faith bargaining requirements.

After reviewing the arguments and evidence presented by both parties, the FWC found that the proposed enterprise agreement met all the statutory requirements. The FWC determined that the agreement included all the mandated minimum terms and conditions, and that it had been made in good faith. The FWC also concluded that the agreement would not have an adverse effect on employees’ job security, wages, conditions, or terms of employment. Consequently, the FWC approved the Nurses (National Continence Helpline) Enterprise Agreement 2022-2025.

The FWC's final order was the approval of the Nurses (National Continence Helpline) Enterprise Agreement 2022-2025. The agreement is now in force and binds the parties, providing the terms and conditions of employment for the nurses employed by the Continence Foundation of Australia to operate the National Continence Helpline.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established