Cura Newco 6 Pty Ltd T/A Glen Iris Private

[2025] FWCA 321

[2025] FWCA 321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Cura Newco 6 Pty Ltd T/A Glen Iris Private

(AG2025/22)

GLEN IRIS PRIVATE NURSES ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER REDFORD	MELBOURNE, 28 JANUARY 2025

Application for approval of the Glen Iris Private Nurses Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Glen Iris Private Nurses Enterprise Agreement 2024 (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 6 Pty Ltd T/A Glen Iris Private (Cura Newco). The Agreement is a single enterprise agreement.

Administrative Error

1. Since the application was filed, Cura Newco has alerted the Commission to errors in the material provided in support of the application and in the manner the application has been described in previous correspondence with the Commission. I will exercise my power pursuant to s 586 to correct these errors, having also been advised by the Australian Nursing and Midwifery Federation (ANMF), who was a bargaining representative for the Agreement, that there is no objection. Accordingly:

a.The reference in the application and in the Form F17 Declaration filed in support of the application to “Cura Newco 9 Pty Ltd” [my emphasis] is amended to read “Cura Newco 6 Pty Ltd T/A Glen Iris Private”;

b.The reference to Cura’s current ABN in the application and in the Form F17 Declaration is corrected to read “38 635 716 308”;

c.The reference to Cura’s current ACN in the Form F17 Declaration is corrected to read “635 716 308”;

d.Any previous reference to the name of the applicant involving the trading name “Sir John Monash Private Hospital” should be taken to read “Glen Iris Private”.

Interaction with the National Employment Standards

1. Clause 6(b) of the Agreement provides that the National Employment Standards (NES) provides employees with certain entitlements and where the agreement deals with an NES - derived entitlement – and where the NES provision is more favourable to the employee - the NES will prevail to the extent it is more favourable (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Clause 22(c)(ii) and (iii) of the Agreement states that employees may take annual leave by agreement in periods of no less than one day, and with approval, an employee can take a maximum of ten days annual leave as single days in each year of employment. Section 88 of the Act, which deals with taking annual leave, does not contain these kinds of restrictions, and instead provides that annual leave may be taken for a period agreed to by an employee and their employer, and agreement to a request to take annual leave made by an employee must not be unreasonably withheld by their employer. To the extent that clauses 22(c)(ii) and (iii) contain a more restrictive and unfavourable entitlement, the effect of the NES precedence clause is such that the terms of s 88 of the Act will prevail.

b.Clause 24(b)(i) of the Agreement expresses the entitlement to personal leave as accruing in hours, as opposed to s 96 of the Act, in which the entitlement to personal leave accrues in days. To the extent that the expression used in the agreement will result in an unfavourable entitlement, the terms of the NES precedence clause will mean the provisions of the Act will prevail.

c.To the extent that clause 23(d) of the Agreement, which allows for the substitution of a public holiday by the agreement of a majority of employees may result in a less favourable arrangement than that provided for by s 115(3) of the Act – which envisages that public holiday substitution may occur as a result of agreement between an employee and an individual employee - the terms of the NES precedence clause will mean the provisions of the Act will prevail.

d.It should be noted that s 114 contains an explicit entitlement that an employee may be absent from their employment on a day or part day that is a public holiday in th place where the employee is based for work purposes.

Consideration

1. In response to queries raised by the Commission, Cura Newco provided supplementary submissions in support of its application. These had the support of the ANMF.  Taking those submissions into account, 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 ANMF, 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 ANMF.

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

COMMISSIONER

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