Gastro West Pty Ltd as the Trustee for the Western Suburbs Endoscopy Services Unit Trust T/A Keilor Private

[2023] FWCA 55

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gastro West Pty Ltd as the Trustee for the Western Suburbs Endoscopy Services Unit Trust T/A Keilor Private

(AG2022/5353)

GASTRO WEST PTY LTD AS THE TRUSTEE FOR THE WESTERN SUBURBS ENDOSCOPY SERVICES UNIT TRUST NURSES ENTERPRISE AGREEMENT 2022

Health and welfare services
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 9 JANUARY 2023

Application for approval of the Gastro West Pty Ltd as the Trustee for the Western Suburbs Endoscopy Services Unit Trust Nurses Enterprise Agreement 2022

Keilor Private has applied for approval of an enterprise agreement known as the Gastro West Pty Ltd as the Trustee for the Western Suburbs Endoscopy Services Unit Trust Nurses Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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.

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.

I observe that clause 24(d) is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 January 2023. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission involved Gastro West Pty Ltd as the Trustee for the Western Suburbs Endoscopy Services Unit Trust, trading as Keilor Private, and the Australian Nursing and Midwifery Federation. The matter concerned the approval of a proposed enterprise agreement, the Nurses Enterprise Agreement 2022, which would govern the terms and conditions of employment for nurses employed by Gastro West under the specified trust. The case was heard and determined by the Fair Work Commission, which has jurisdiction over matters related to workplace relations and industrial matters in Australia.

The central legal issues for the Commission to address were whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009 and whether it complied with the provisions that govern the approval of enterprise agreements. Specifically, the Commission needed to determine if the agreement had been negotiated in good faith, if it provided for a fair and efficient workplace, and if it adhered to the procedural requirements for the approval of such agreements. The Commission also needed to consider if the agreement provided adequate protections for employees and if it complied with any relevant national employment standards.

After reviewing the submissions and evidence from both parties, the Commission found that the proposed Nurses Enterprise Agreement 2022 was in compliance with the relevant statutory requirements. The Commission was satisfied that the agreement had been negotiated in good faith and that it provided for a fair and efficient workplace. The Commission also found that the agreement adequately protected the rights of the employees and was consistent with the national employment standards. Consequently, the Commission approved the application for the agreement's registration, ensuring that it would legally govern the employment conditions for nurses at Keilor Private.

The Fair Work Commission's decision was to approve the registration of the Nurses Enterprise Agreement 2022, effective from the date of the Commission's order. This determination meant that the agreement would be binding on all parties involved, and it would serve as the basis for the terms and conditions of employment for the nurses employed by Gastro West under the Western Suburbs Endoscopy Services Unit Trust. The approval of the agreement finalised the legal process concerning the terms of employment for the nurses in question, providing clarity and certainty for both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established