Glenelg Community Hospital Incorporated T/A Glenelg Community Hospital Inc

[2024] FWCA 1646

[2024] FWCA 1646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Glenelg Community Hospital Incorporated T/A Glenelg Community Hospital Inc

(AG2024/1298)

GLENELG COMMUNITY HOSPITAL NURSING EMPLOYEES AUSTRALIAN NURSING AND MIDWIFERY FEDERATION ENTERPRISE AGREEMENT 2022

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 17 MAY 2024

Application for approval of the Glenelg Community Hospital Nursing Employees and Australian Nursing and Midwifery Federation Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Glenelg Community Hospital Nursing Employees and Australian Nursing and Midwifery Federation Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Glenelg Community Hospital Incorporated T/A Glenelg Community Hospital Inc. The Agreement is a single enterprise agreement.

1. On 29 April 2024, my Chambers sent correspondence to the parties outlining a number of potential issues with the Agreement. In that correspondence, I observed that the Agreement did not entitle part-time employees to overtime in circumstances where if they were employed under the Award, they would receive overtime. I sought and received an undertaking to resolve this issue.

1. 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. The undertakings are taken to be a term of the agreement.

1. 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.

1. I observe that the following provisions may be inconsistent with the National Employment Standards (NES):

·           Casual Conversion - Cl 4.4.8.2 and 4.4.8A of the Agreement provide requirements relating to when a casual employee must be offered conversion to permanent employment. These clauses may be more restrictive than the NES which provides employees must be offered conversion if employed for 12 months and working a regular pattern for 6 months.

·           Public Holiday Substitution: Cl 7.2.3 of the Agreement states that the employer and employees may, by agreement, substitute another day for a Public Holiday. This may be inconsistent with the NES as it may not allow for a substitution to be made by agreement with a single employee.

1. However, noting clause 2.7 and the provided undertakings 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.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 May 2024. The nominal expiry date of the Agreement is 31 August 2025.

COMMISSIONER

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Annexure A