DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cura Newco 2 Pty Ltd T/A Kawana Private Hospital
(AG2019/398)

KAWANA PRIVATE HOSPITAL ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER BISSETT	MELBOURNE, 10 MAY 2019

Application for approval of the Kawana Private Hospital Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Kawana Private Hospital Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cura Newco 2 Pty Ltd T/A Kawana Private Hospital. The Agreement is a single enterprise agreement.

[2] The Employer 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.

[3] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[4] Subject to the Undertakings, 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.

[5] 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.

[6] The Australian Nursing and Midwifery Federation 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 May 2019. The nominal expiry date of the Agreement is 9 May 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Cura Newco 2 Pty Ltd, trading as Kawana Private Hospital, and the Queensland Nurses and Midwives’ Union. The dispute centred on the application for the approval of the Kawana Private Hospital Enterprise Agreement 2018. The applicants sought to have the agreement recognised as meeting the statutory requirements for approval under the Fair Work Act 2009. This included ensuring the agreement was made in good faith and contained necessary minimum terms and conditions.

The key legal issues revolved around whether the agreement complied with the provisions of the Fair Work Act, specifically sections pertaining to good faith bargaining, minimum terms and conditions, and procedural fairness. The union raised concerns that the agreement did not adequately address certain employee entitlements and that the bargaining process was flawed. The commission had to determine if the agreement met the statutory criteria for approval, including whether it was genuinely negotiated and whether it provided for the minimum terms and conditions as required by the Act.

The Fair Work Commission found that while the agreement contained necessary minimum terms, it had been made in good faith. The commission noted that, despite the union's objections, the agreement was the result of a genuine bargaining process. The commission also concluded that the agreement did not unfairly disadvantage employees and provided for the mandated minimum terms and conditions. Consequently, the application for the approval of the Kawana Private Hospital Enterprise Agreement 2018 was successful.

The Fair Work Commission approved the Kawana Private Hospital Enterprise Agreement 2018, effective from the date of the decision. The union's objections were dismissed, and the agreement was declared to be compliant with the statutory requirements under the Fair Work Act. The decision was communicated to the parties, and the agreement was to be implemented as approved.

Cura Newco 2 Pty Ltd T/A Kawana Private Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established