DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fresenius Medical Care Australia Pty Ltd T/A Fresenius Medical Care Australia Pty Ltd
(AG2018/7440)

FRESENIUS MEDICAL CARE SA NURSING STAFF ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 15 FEBRUARY 2019

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

[1] An application has been made for approval of an enterprise agreement known as the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2017 (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 T/A Fresenius Medical Care Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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.

[4] 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 February 2019. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fresenius Medical Care Australia Pty Ltd, trading as Fresenius Medical Care Australia, brought an application before the Fair Work Commission for the approval of the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2017. The application was contested by the South Australian Health Industry Employees Union (SA HIEU), which claimed that the agreement did not meet certain statutory requirements under the Fair Work Act 2009. The primary dispute centred on whether the agreement appropriately covered the bargaining unit and adhered to the procedural requirements necessary for its approval.

The court was tasked with determining whether the agreement had been made in accordance with the statutory provisions and whether it was properly certified as a certified agreement. This included examining whether the agreement had been made by an independent certified union, whether the agreement covered the correct bargaining unit, and whether the correct procedures for making and approving the agreement were followed. The court also needed to assess whether the agreement contained the mandatory terms and conditions as prescribed by the Act.

In its decision, the court found that the agreement had indeed been made in accordance with the statutory requirements. The court confirmed that the agreement had been certified by an independent union and that it correctly identified the bargaining unit. Additionally, the court found that the necessary procedures for making and approving the agreement were followed, and that the agreement contained all the mandatory terms and conditions. Consequently, the court approved the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2017.

Fresenius Medical Care Australia Pty Ltd T/A 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