DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fresenius Medical Care Australia Pty Ltd T/A Fresenius Medical Care
(AG2021/7003)

FRESENIUS MEDICAL CARE SA NURSING STAFF ENTERPRISE AGREEMENT 2020

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 8 SEPTEMBER 2021

Application for approval of the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2020 (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.

[2] The matter was allocated to my Chambers on 7 September 2021 and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 8 September 2021. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• Casual employees will receive the casual loading on a cumulative basis when overtime is worked.

[4] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[5] 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.

[6] 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.

[7] 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.

[8] 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 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Fresenius Medical Care Australia Pty Ltd, trading as Fresenius Medical Care, which applied to the Fair Work Commission for approval of the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2020. The dispute was about whether the agreement met the necessary standards for approval under the Fair Work Act 2009. The Commission was tasked with determining if the agreement included all required minimum terms and conditions and was free from prohibited content.

The central legal issues revolved around whether the agreement complied with the statutory minimum terms and conditions set out in the Fair Work Act. Additionally, the Commission had to ensure that the agreement did not contain any prohibited content, such as provisions that would undermine the right of employees to take protected industrial action. The Commission also examined whether the agreement had been genuinely negotiated and if it adequately protected the interests of the employees involved.

In reaching its decision, the Fair Work Commission considered the provisions of the Fair Work Act and the specific requirements for enterprise agreements. The Commission found that the agreement contained all necessary minimum terms and conditions, including provisions on wages, hours of work, and other employment-related matters. The Commission also confirmed that the agreement was free from any prohibited content and had been genuinely negotiated. Consequently, the Commission approved the agreement, recognising its compliance with the statutory requirements.

The Fair Work Commission approved the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2020, affirming its compliance with the Fair Work Act. The Commission's decision was based on the comprehensive examination of the agreement's provisions, confirming it met all necessary minimum terms and conditions, was free from prohibited content, and had been genuinely negotiated. The approval ensures that the agreement will effectively govern the employment relationship between the parties moving forward.

Fresenius Medical Care Australia Pty Ltd T/A Fresenius Medical Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established