Healthe Care Burnie Pty Ltd Trading AS North West Private Hospital

[2025] FWCA 3001

[2025] FWCA 3001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Healthe Care Burnie Pty Ltd Trading AS North West Private Hospital

(AG2025/2507)

HEALTHE CARE BURNIE PTY LTD (‘NORTH WEST PRIVATE HOSPITAL’) AND HEALTH AND COMMUNITY SERVICES UNION HOSPITAL STAFF ENTERPRISE AGREEMENT 2025

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 18 SEPTEMBER 2025

Application for approval of the Healthe Care Burnie Pty Ltd (‘North West Private Hospital’) and Health and Community Services Union Hospital Staff Enterprise Agreement 2025

1. Healthe Care Burnie Pty Ltd trading as North West Private Hospital (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Healthe Care Burnie Pty Ltd (‘North West Private Hospital’) and Health and Community Services Union Hospital Staff Enterprise Agreement 2025 (the Agreement).

1. The Health Services Union, Tasmanian Branch (HSU), 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 HSU.

1. Clause 25(c) of the Agreement which relates to notification requirements for personal leave may be more stringent than section 107(2)(a) of the Act. However, noting clause 45 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and NES.

1. There were a number of Better Off Overall Test (BOOT) concerns relating to this application:

• The definition of a ‘Day Worker’ under the Agreement for a Level 2 or Level 3 Administrative and Clerical Employee provides a span of ordinary hours between 6.30am to 7.30pm Monday to Friday. Under clause 13.2(a) of the Health Professionals and Support Services Award 2020[1] (the Award) the ordinary hours of work for a Day Worker are between 6.00am - 6.00pm Monday to Friday. The HSU submitted the different definitions of Day Worker raised BOOT concerns. To address any concerns, the Employer provided an undertaking clarifying that a ‘Day Worker’ whose ordinary hours finished after 6pm would receive an afternoon shift penalty in relation to the shift.

  • Under clause 11(e) of the Agreement an employee’s ordinary hours may be extended by mutual agreement to a maximum of 11 ordinary hours. Under 13.1(b) of the Award, no more than 10 ordinary hours can be worked in any one day. The Employer has addressed this BOOT concern by providing an undertaking that overtime will apply to any hours worked in excess of 10 hours for employees in relevant classifications.
  • Clause 14 of the Agreement relating to part-time employees does not include a number of the safeguards around part-time work that are included in the Award. The Employer addressed these BOOT concerns by providing undertakings (see undertakings 1 & 2 attached), including a provision that the Employer and part-time employee will have an in-writing agreement on agreed contracted fortnightly hours, and the span of hours, and specific days worked, before commencing employment. 
  • Clause 15(d)(ii), relating to overtime, states that overtime rates for casual employees classified as Operational Employees Levels 2 and 3 will be calculated on the ordinary rate of pay excluding the casual loading usually received by this employee group. In comparison the clause 25.3(b) of the Award stipulates that overtime loading and casual loading will compound.  The Employer provided an undertaking to resolve this issue.

• Appendix 1 of the Agreement states that employees will receive a meal allowance of $15.46 and $13.93 for overtime in excess of 4 hours. These allowances are below those stated at clause 23.3(e) of the Award as $16.62 and $14.98, where overtime work exceeds 4 hours. Given the rates of pay in the Agreement for administrative and clerical employees at the Level 1 classification and Operational Employees Level 1 to Level 3 classifications, it was unclear how these employees would be better off under the Agreement than the Award.  The Employer provided an undertaking to resolve this issue by increasing the Meal Allowance A to $16.62 and Meal Allowance B to $14.98 for these classifications.

1. 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. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 September 2025. The nominal expiry date of the Agreement is 1 July 2028.

COMMISSIONER

ANNEXURE A

[1] MA000027.

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