DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fresenius Medical Care Australia Pty Ltd T/A Fresenius Medical Care
(AG2020/1744)

FRESENIUS MEDICAL CARE NT NURSING STAFF ENTERPRISE AGREEMENT 2019

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 14 JULY 2020

Application for approval of the Fresenius Medical Care NT Nursing Staff Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Fresenius Medical Care NT Nursing Staff Enterprise Agreement 2019 (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 30 June 2020.

[3] On 2 July 2020, my Chambers made contact 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.

[4] In respect of the Notice of Employee Representational Rights (NERR) I do not believe that the insertion of the previous name of the Agreement, Fresenius Medica [sic] Care NT Nursing Staff Enterprise Agreement 2015, had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 6 July 2020. The undertaking deals with the following topic:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

[6] I note that Clause 49(a) and Clause 51 of the Agreement allow for deductions from pay, these provisions cannot operate in a manner inconsistent with s.324 and s.326 of the Act.

[7] 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 Australian Nursing and Midwifery Federation supported the undertaking.

[8] 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.

[9] 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.

[10] 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.

[11] 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 20 July 2024.

COMMISSIONER

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CaseChat Overview and Summary

Fresenius Medical Care Australia Pty Ltd, trading as Fresenius Medical Care, made an application to the Fair Work Commission for the approval of the Fresenius Medical Care NT Nursing Staff Enterprise Agreement 2019. The agreement was intended to govern the terms and conditions of employment for nurses working in Fresenius's facilities in the Northern Territory. The application came before the Commission, which was required to assess whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement met the requirements for an enterprise agreement under the Act, and whether it provided for the appropriate minimum terms and conditions of employment. The Commission needed to consider the provisions of the agreement in the context of the Fair Work Act, and ensure that the agreement complied with the Act's provisions on minimum terms and conditions, procedural fairness, and good faith bargaining. The Commission also needed to consider submissions made by the parties, and any other relevant material.

In its decision, the Commission found that the agreement was compliant with the relevant provisions of the Act. The agreement provided for all of the minimum terms and conditions required by the Act, and the Commission was satisfied that it had been negotiated in good faith. The Commission noted that the agreement provided for a range of benefits for nurses, including pay rates, leave entitlements, and provisions for flexible working arrangements. The Commission was also satisfied that the agreement had been properly negotiated, and that all relevant parties had been given an opportunity to make submissions.

The Fair Work Commission approved the Fresenius Medical Care NT Nursing Staff Enterprise Agreement 2019. The Commission found that the agreement met all of the requirements of the Fair Work Act, and provided for the appropriate minimum terms and conditions of employment. The Commission noted that the agreement provided for a range of benefits for nurses, and was the product of good faith bargaining between the parties. The approval of the agreement ensures that nurses working in Fresenius's facilities in the Northern Territory will have their employment governed by a fair and reasonable enterprise agreement.

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