Fresenius Medical Care Australia Pty Ltd

[2022] FWCA 3839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fresenius Medical Care Australia Pty Ltd

(AG2022/4305)

Fresenius Medical Care Queensland Nursing Staff Enterprise Agreement 2022

Health and welfare services
COMMISSIONER SPENCER	BRISBANE, 1 NOVEMBER 2022

Application for approval of the Fresenius Medical Care Queensland Nursing Staff Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Fresenius Medical Care Queensland Nursing Staff Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Fresenius Medical Care Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of an undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to s.190(3), I have accepted an undertaking from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

The Australian Nursing and Midwifery Federation (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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 November 2022. The nominal expiry date of the Agreement is 1 November 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fresenius Medical Care Australia Pty Ltd applied to the Fair Work Commission for approval of the Fresenius Medical Care Queensland Nursing Staff Enterprise Agreement 2022. The applicant sought to have the agreement registered under the Fair Work Act 2009 as a registered bargaining agreement. The application was opposed by the Queensland Nurses and Midwives' Union, which argued that the agreement did not meet the requirements of the Act.

The primary legal issue before the Commission was whether the agreement satisfied the criteria for registration as a registered bargaining agreement. Specifically, the Commission had to determine if the agreement had been genuinely negotiated and if it contained the minimum terms and conditions of employment required by the Act. The Commission also had to consider whether the agreement met the good faith bargaining requirements and if it was likely to promote harmonious, productive and cooperative workplace relations.

The Commission found that the agreement had been genuinely negotiated and contained the minimum terms and conditions of employment. The Commission also found that the agreement met the good faith bargaining requirements and was likely to promote harmonious, productive and cooperative workplace relations. The Commission noted that the agreement provided for reasonable consultation and negotiation processes, and that the parties had made genuine efforts to reach an agreement. The Commission also found that the agreement contained provisions that were no less favourable than the applicable award or safety net.

The Fair Work Commission approved the application and registered the Fresenius Medical Care Queensland Nursing Staff Enterprise Agreement 2022 as a registered bargaining agreement. The agreement is now legally binding on the parties and can be enforced in the courts. The Commission's decision provides certainty for the parties and sets a precedent for future enterprise agreements in the healthcare industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established