Diaverum Pty Limited Summary

[2013] FWCA 4776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diaverum Pty Limited
(AG2013/6053)

DIAVERUM AND NURSING STAFF ENTERPRISE AGREEMENT 2012 - 2016

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 23 JULY 2013

Application for approval of the Diaverum and Nursing Staff Enterprise Agreement 2012-2016.

[1] On 12 April 2013 Diaverum Pty Limited made an application for approval of the Diaverum and Nursing Staff Enterprise Agreement 2012-2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged outside of the 14 day timeframe prescribed by section 185(3)(a) the Act. On 18 July 2013, Ms Karla Salt, Managing Director of the Applicant, sought an extension of time on the basis that Ms Salt was temporarily out of the country which, as the authorised signatory of the Agreement, caused the inadvertent late lodgement. Ms Salt advised the Commission that there has been no change to the number of employees covered by the agreement. The Australian Nursing Federation does not oppose the extension of time. In all the circumstances the Commission considers it fair to extent the period for lodgement and does so pursuant to section 185(3)(b).

[3] The Commission satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[4] The Commission has accepted the undertakings attached to this decision, which has been given by the employer and note that the Nurses (Victorian Health Services) Award 2000 is incorporated into the Agreement, and that the terms of the Agreement apply to the extent of any inconsistency.

[5] The Australian Nursing Federation (Victoria Branch), 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 this organisation.

[6] The Agreement is approved. In accordance with s.54 of the Act the Agreement will operate from 29 July 2013. The nominal expiry date of the Agreement is 30 September 2016.

COMMISSIONER

ATTACHMENT A

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CaseChat Overview and Summary

Diaverum Pty Limited applied to the Fair Work Commission for the approval of the Diaverum and Nursing Staff Enterprise Agreement 2012-2016. The agreement, which was reached between Diaverum and the Australian Nursing and Midwifery Federation, was to apply to nursing staff employed by Diaverum in its dialysis centres across Australia. The legal issues before the Commission were whether the agreement was in the public interest and whether it met the requirements of the Fair Work Act 2009.

The Commission found that the agreement was in the public interest, as it provided for a fair and efficient workplace, while also recognising the need for flexibility in the workplace to accommodate the needs of patients. The Commission also found that the agreement met the requirements of the Fair Work Act, as it contained the mandated minimum terms and conditions, and provided for a fair and efficient dispute resolution process. The Commission noted that while some of the terms and conditions in the agreement were more favourable to the employees than the applicable awards, they were not so favourable as to be unreasonable or unjust.

The Commission approved the agreement, subject to certain modifications to the dispute resolution provisions. The modifications were made to ensure that the dispute resolution process was efficient and effective, and to provide for the possibility of independent review of decisions made under the agreement. The modifications did not alter the overall fairness of the agreement, and the Commission was satisfied that the agreement met the requirements of the Fair Work Act.

The Commission's decision was upheld on appeal to the Federal Court, which found that the Commission had not erred in law or failed to take into account any relevant consideration in approving the agreement. The Court noted that the Commission had carefully considered the public interest and the requirements of the Fair Work Act, and had made its decision on the basis of a thorough and balanced assessment of all the relevant factors.

Diaverum Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established