DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Epworth Foundation T/A Epworth HealthCare
(AG2021/4411)

EPWORTH HEALTHCARE NURSES AND MIDWIVES ENTERPRISE AGREEMENT 2020-2024

Health and welfare services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 28 APRIL 2021

Application for approval of the Epworth HealthCare Nurses and Midwives Enterprise Agreement 2020-2024.

[1] Epworth Foundation T/A Epworth HealthCare (the Employer) has made an application for approval of an enterprise agreement known as the Epworth HealthCare Nurses and Midwives Enterprise Agreement 2020-2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The copy of the NERR provided to employees refers to the Agreement as the Nurses & Midwives Enterprise Agreement 2020, however, clause 1 of the Agreement provides that the name of the Agreement is the Epworth HealthCare Nurses and Midwives Enterprise Agreement 2020-2024. The Employer provided submissions in relation to this error on 16 April 2021. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph 2 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, 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.

[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 seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 28 April 2021 and, in accordance with s 54, will operate from 5 May 2021. The nominal expiry date of the Agreement is 28 February 2025.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Epworth Foundation T/A Epworth HealthCare applied to the Fair Work Commission for approval of the Epworth HealthCare Nurses and Midwives Enterprise Agreement 2020-2024. The application was made by the employer under section 234 of the Fair Work Act 2009, seeking a determination that the agreement complies with the Act. The application was opposed by the Australian Nursing and Midwifery Federation (Victorian Branch), which submitted that the agreement did not meet the requirements of the Act because it did not provide for adequate minimum rates of pay and conditions for nurses and midwives.

The primary legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Act. The Commission considered whether the agreement provided for minimum rates of pay and conditions that were no less favourable than the relevant award or safety net. The Commission also considered whether the agreement provided for appropriate processes for resolving disputes and whether it was consistent with the overarching objectives of the Act.

The Commission found that the agreement met the statutory requirements for approval. The Commission considered that the agreement provided for minimum rates of pay and conditions that were no less favourable than the relevant award or safety net. The Commission also found that the agreement provided for appropriate processes for resolving disputes and was consistent with the overarching objectives of the Act. The Commission noted that the agreement included provisions for the negotiation of further agreements and the resolution of disputes, which were consistent with the Act. The Commission also noted that the agreement provided for a range of benefits for nurses and midwives, including provisions for professional development and career progression.

The Commission approved the Epworth HealthCare Nurses and Midwives Enterprise Agreement 2020-2024, subject to certain modifications to ensure compliance with the Act. The modifications related to the calculation of penalty rates and the provision of shift loadings. The Commission considered that these modifications were necessary to ensure that the agreement met the statutory requirements for approval. The employer and the union were given the opportunity to make submissions on the modifications before the Commission made its final determination.

Epworth Foundation T/A Epworth HealthCare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established