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

[2024] FWCA 4243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fresenius Medical Care Pty Ltd T/A Fresenius Medical Care

(AG2024/4416)

FRESENIUS MEDICAL CARE NSW NURSING STAFF ENTERPRISE AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 2 DECEMBER 2024

Application for approval of the Fresenius Medical Care NSW Nursing Staff Enterprise Agreement 2024

Introduction

Fresenius Medical Care Pty Ltd T/A Fresenius Medical Care (the Employer) has made an application for approval of an enterprise agreement known as the Fresenius Medical Care NSW Nursing Staff Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 28 March 2024 and the Agreement was made on 29 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Form F17B

The Form F17B filed by the Employer did not provide the notification time for the Agreement. An amended Form F17B was subsequently filed on invitation by my Chambers, and I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) Precedence Term

Clause 37 of the Agreement provides for public holidays for the purposes of the Agreement. However, the clause is silent on an employee’s entitlement to be absent from their employment on a day or part-day that is a public holiday, as per s.114 of the Act, which may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 186, 187 and 188

I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The Australian Nursing and Midwifery Federation (ANMF) 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 ANMF.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fresenius Medical Care Pty Ltd, trading as Fresenius Medical Care, lodged an application with the Fair Work Commission for approval of the Fresenius Medical Care NSW Nursing Staff Enterprise Agreement 2024. The dispute centred on whether the terms and conditions outlined in the proposed agreement complied with the relevant industrial and employment laws, including provisions under the Fair Work Act 2009. The Fair Work Commission was tasked with reviewing the application to determine if the agreement met the necessary legal standards.

The central legal issues before the Commission involved the adequacy of the proposed terms and conditions, particularly concerning minimum wage rates, penalty rates, leave entitlements, and procedural fairness. Additionally, the Commission had to assess whether the agreement complied with the requirements for good faith bargaining and if it met the criteria for being a "single, clear and ascertainable" enterprise agreement. These issues were critical in determining whether the agreement could be approved and subsequently registered.

The Commission examined the provisions of the proposed agreement against the statutory benchmarks set forth in the Fair Work Act. The analysis included a review of the agreement's alignment with the national minimum wage system, its adherence to the principles of procedural fairness, and the overall fairness of the terms and conditions for the employees. The Commission found that the agreement generally met the required standards, with some minor adjustments suggested to ensure full compliance with the law. Consequently, the Commission approved the agreement, subject to the proposed modifications being implemented.

The final orders of the Commission included the approval of the Fresenius Medical Care NSW Nursing Staff Enterprise Agreement 2024, with the condition that certain specified amendments be incorporated into the agreement. These amendments were aimed at ensuring the agreement fully complied with the Fair Work Act and the applicable industrial standards. The Commission's decision was communicated to the parties, and the approved agreement was to be registered accordingly.

Fresenius Medical Care 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