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

[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

Printed by authority of the Commonwealth Government Printer

Fresenius Medical Care Australia Pty Ltd, trading as Fresenius Medical Care, applied to the Fair Work Commission for the approval of the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2024. The applicant, a provider of dialysis services, sought to have the agreement approved as a low-paid industry award under the Fair Work Act 2009. The dispute involved the terms and conditions of employment for nursing staff within the organisation.

The legal issues before the Commission were whether the proposed agreement met the requirements for approval under the Fair Work Act, including that it was a genuine enterprise agreement, it did not undervalue the workforce, and it contained appropriate safeguards to ensure fair terms and conditions. Additionally, the Commission had to consider whether the agreement adequately covered all employees and whether the bargaining process was conducted fairly and in good faith.

In rendering its decision, the Commission evaluated the provisions of the agreement against the legislative criteria. It considered the bargaining process and the extent to which the agreement represented a genuine agreement between the employer and the employees. The Commission also examined the terms of the agreement to ensure they did not undervalue the workforce and included appropriate safeguards. After thorough analysis, the Commission was satisfied that the agreement met the legislative requirements and was approved as a low-paid industry award. The decision noted that the agreement provided fair terms and conditions for the nursing staff and was made in good faith.

The Fair Work Commission approved the Fresenius Medical Care SA Nursing Staff Enterprise Agreement 2024 as a low-paid industry award. This decision ensures that the terms and conditions of employment for nursing staff within the organisation are governed by the approved agreement, which provides a fair and balanced framework for both the employer and employees.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established