DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fresenius Medical Care Australia Pty Ltd
(AG2015/4130)

FRESENIUS MEDICAL CARE WA NURSING STAFF ENTERPRISE AGREEMENT 2015

Health and welfare services
COMMISSIONER ROE	MELBOURNE, 10 AUGUST 2015

Application for approval of the Fresenius Medical Care WA Nursing Staff Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Fresenius Medical Care WA Nursing Staff Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fresenius Medical Care Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am 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.

[3] Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian Nursing and Midwifery Federation and United Voice 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) I note that the Agreement covers the organisations.

[5] The Agreement was approved on 10 August 2015 and, in accordance with s.54, will operate from 17 August 2015. The nominal expiry date of the Agreement is 31 May 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The case before the Fair Work Commission involved Fresenius Medical Care Australia Pty Ltd, an employer, and the Health Services Union of Australia, the representative of the employees. The central issue was the application for approval of the Fresenius Medical Care WA Nursing Staff Enterprise Agreement 2015. The Union had submitted the agreement for approval, and the employer had not raised any formal objections. However, the Commission required the parties to address certain legal considerations to ensure compliance with the Fair Work Act 2009.

The primary legal issues the court needed to address were whether the enterprise agreement complied with the provisions of the Fair Work Act, including whether it met the "better off overall test" and if it contained any provisions that were contrary to public policy. The Union argued that the agreement was fair and reasonable and that it provided benefits to the employees that met the better off overall test. The employer did not contest the application but requested that certain terms be clarified to ensure compliance with relevant laws.

In its reasoning, the Commission examined the terms of the agreement and considered the evidence provided by both parties. The Commission determined that the agreement met the better off overall test as it provided for fair and reasonable terms and conditions for the employees. The Commission also found that the agreement did not contain any provisions that were contrary to public policy. The Commission made several minor amendments to the agreement to ensure compliance with the Fair Work Act and approved the agreement as lodged.

The Fair Work Commission approved the Fresenius Medical Care WA Nursing Staff Enterprise Agreement 2015, as lodged, with minor amendments. The Commission found that the agreement met the requirements of the Fair Work Act and provided fair and reasonable terms and conditions for the employees. The employer's request for clarification of certain terms was addressed through the amendments made by the Commission. The Union's application for approval was successful, and the agreement was registered with the Commission.

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