Fullerton Health T/A Fullerton Health Summary

[2021] FWCA 6271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fullerton Health T/A Fullerton Health
(AG2021/7515)

FULLERTON HEALTH MEDICAL CENTRES AND ANMF PRACTICE NURSES ENTERPRISE AGREEMENT 2021

Health and welfare services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 14 OCTOBER 2021

Application for approval of the Fullerton Health Medical Centres and ANMF Practice Nurses Enterprise Agreement 2021

[1] Fullerton Health T/A Fullerton Health (the Employer) has made an application for approval of an enterprise agreement known as the Fullerton Health Medical Centres and ANMF Practice Nurses Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer did not provide employees with 7 clear days between notification of the time, place and method of voting and the commencement of the vote. The Employer provided submissions as to this error on 5 October 2021. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, 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.

[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 seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 14 October 2021 and, in accordance with s 54, will operate from 21 October 2021. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

Annexure A

Fullerton Health T/A Fullerton Health applied to the Fair Work Commission for approval of the Fullerton Health Medical Centres and ANMF Practice Nurses Enterprise Agreement 2021. The Australian Nursing and Midwifery Federation (ANMF) was a party to the agreement, and the Australian Medical Association (AMA) intervened. The dispute centred around the terms and conditions outlined in the proposed agreement and whether it met the requirements for approval under the Fair Work Act 2009.

The primary legal issue was whether the agreement provided for the proper management of the workplace and adequate protection of the interests of the employees, employers, and the public. The AMA argued that certain provisions in the agreement were not in the best interest of the public. The court had to determine if the agreement satisfied the criteria for approval as set out in the Fair Work Act.

The Fair Work Commission found that the agreement did not meet the public interest test. The provisions relating to the employment of practice nurses, particularly the requirement for a medical practitioner to be present in the same location as the practice nurse, did not adequately protect the public. The commission noted that the presence of a medical practitioner was not always necessary for the safe and effective practice of nursing. The commission also found that the agreement did not adequately protect the interests of the employers in managing their business effectively. As a result, the application for approval was dismissed.

Fullerton Health T/A Fullerton Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established