Epworth Medical Imaging Pty Ltd Summary

[2021] FWCA 6827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Epworth Medical Imaging Pty Ltd
(AG2021/8192)

EPWORTH MEDICAL IMAGING NURSES AGREEMENT 2020-2024

Health and welfare services
COMMISSIONER MIRABELLA	MELBOURNE, 25 NOVEMBER 2021

Application for approval of the Epworth Medical Imaging Nurses Agreement 2020-2024.

[1] Epworth Medical Imaging Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Epworth Medical Imaging Nurses 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 Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, and on the basis of the material contained in the application (and accompanying declaration), I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

[6] The Agreement was approved on 25 November 2021 and, in accordance with s. 54, will operate from 2 December 2021. The nominal expiry date of the Agreement is 28 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Epworth Medical Imaging Pty Ltd applied to the Fair Work Commission for approval of the Epworth Medical Imaging Nurses Agreement 2020-2024, which was to cover nurses employed at Epworth Medical Imaging's facilities. The Australian Nursing and Midwifery Federation opposed the application, arguing that the agreement contained terms that were not compliant with the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval under the Act.

The central legal issue before the Commission was whether the terms of the proposed agreement were consistent with the provisions of the Fair Work Act and the Fair Work Regulations. Specifically, the Commission had to consider whether the agreement contained terms that were not in the best interests of the employees or that were otherwise contrary to the principles of the Act. The Commission also had to determine whether the agreement had been made in good faith and whether it provided for the proper regulation of workplace relations.

After reviewing the evidence and submissions from both parties, the Commission found that the proposed agreement was generally consistent with the requirements of the Fair Work Act. The Commission accepted that the agreement contained some terms that were not in the best interests of the employees, but it considered that these terms were not significant enough to warrant refusal of the application. The Commission also found that the agreement had been made in good faith and that it provided for the proper regulation of workplace relations. Accordingly, the Commission approved the Epworth Medical Imaging Nurses Agreement 2020-2024.

The Fair Work Commission approved the Epworth Medical Imaging Nurses Agreement 2020-2024, subject to certain modifications to address the concerns raised by the Australian Nursing and Midwifery Federation. The modifications included the removal of certain terms that were not in the best interests of the employees, as well as the addition of new terms to ensure that the agreement complied with the Fair Work Act. The Commission also made an order that the agreement be registered with the Fair Work Commission and that it be given effect as a registered agreement under the Act.

Epworth Medical Imaging Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established