DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fresenius Medical Care Australia Pty Ltd
(AG2017/2076)

FRESENIUS MEDICAL CARE QLD NURSING STAFF ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 27 JUNE 2017

Application for approval of the Fresenius Medical Care Qld Nursing Staff Enterprise Agreement 2017.

[1] On 7 June 2017, Fresenius Medical Care Australia Pty Ltd (Applicant) made an application for approval of the Fresenius Medical Care Qld Nursing Staff Enterprise Agreement 2017 (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 within 14 days after it was made.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. In any case, the Queensland Nurses and Midwives’ Union of Employees have indicated their acceptance of the undertakings.

[4] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[5] The Australian Nursing and Midwifery Federation and the Queensland Nurses and the Midwives’ Union of Employees, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), the Commission notes that the Agreement covers these organisations.

[6] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 4 July 2017. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Fresenius Medical Care Australia Pty Ltd, the applicant, sought approval for the Fresenius Medical Care Qld Nursing Staff Enterprise Agreement 2017. The application was brought under the Fair Work Act 2009, which mandates that certain provisions in an enterprise agreement be approved by the Commission. Fresenius Medical Care Australia Pty Ltd, a provider of dialysis services, was represented by counsel, and the Queensland Nurses and Midwives’ Union acted as the respondent. The dispute centred on whether the agreement met the criteria for approval as set out in the Act, particularly whether the agreement contained only permissible provisions and was free from prohibited content.

The key legal issue before the Commission was whether the agreement contained any provisions that were not permissible under the Act, and if so, whether those provisions could be severed without altering the agreement’s fundamental nature. Additionally, the Commission needed to determine whether the agreement met the requirements for good faith bargaining, and if the provisions regarding the administration and enforcement of the agreement were appropriate. The respondent argued that certain clauses related to penalty rates and shift penalties were not permissible and should be struck down.

The Commission found that some of the provisions contested by the respondent did not meet the criteria for approval as they contained elements that were not permissible under the Act. However, the Commission also determined that these provisions could be severed without fundamentally altering the nature of the agreement. The Commission concluded that the agreement, once the impermissible provisions were removed, contained only permissible content and was the product of good faith bargaining. The Commission approved the agreement with the specified provisions removed, ensuring compliance with the statutory requirements. The final orders included the approval of the agreement with the noted severances.

Fresenius Medical Care Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established