Fresenius Medical Care Australia Pty Ltd T/A Fresenius Medical Care
[2024] FWCA 2779
•30 JULY 2024
| [2024] FWCA 2779 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Fresenius Medical Care Australia Pty Ltd T/A Fresenius Medical Care
(AG2024/2613)
FRESENIUS MEDICAL CARE SA NURSING STAFF ENTERPRISE AGREEMENT 2024
| Health and welfare services | |
| COMMISSIONER PLATT | ADELAIDE, 30 JULY 2024 |
Application for approval of the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Fresenius Medical Care Australia Pty Ltd T/A Fresenius Medical Care (the Applicant). The agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 19 July 2024.
On 23 July 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.
The Applicant has submitted an undertaking in the required form dated 29 July 2024. The undertaking replaces Clause 28 with the following:
SHIFT WORK
a) When an Employee works a rostered afternoon shift between Monday and Friday, they will be paid a loading of 12.5% of their Base Hourly Rate.
b) When an Employee works a rostered night shift between Monday and Friday, they will be paid a loading of 15% of their Base Hourly Rate.
c) For the purposes of this clause, ‘afternoon shift’ means any shift commencing no earlier than 11.00am and finishing after 6.00pm on the same day.
d) For the purposes of this clause ‘night shift’ means any shift commencing on or after 6.00 pm and finishing before 7.30 am on the following day.
e) Clause 28 does not apply when an Employee commences their ordinary hours of work after 11.00am and completes those hours at or before 6.00pm on that day.
f) The shift penalties provided in this clause do not apply to shift work performed by an Employee on Saturdays, Sundays or public holidays. On those days, the extra payments provided by clauses 26 (“Saturday and Sunday Work”) and 36 (“Public Holidays”) will apply.
A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives supported the undertaking.
The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.
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) of the Act I note that the Agreement covers this organisation.
I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 5 August 2027.
COMMISSIONER
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