Healthscope Operations Pty Ltd

[2022] FWCA 306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Healthscope Operations Pty Ltd

(AG2021/9287)

Healthscope - NSWNMA/ANMF - NSW Nurses’ and Midwives’ - Enterprise Agreement 2020-2024

Health and welfare services
DEPUTY PRESIDENT DEAN	CANBERRA, 2 FEBRUARY 2022

Application for approval of the Healthscope - NSWNMA/ANMF – NSW Nurses’ and Midwives’ - Enterprise Agreement 2020-2024

An application has been made for approval of an enterprise agreement known as the Healthscope - NSWNMA/ANMF – NSW Nurses’ and Midwives’ - Enterprise Agreement 2020-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Healthscope Operations Pty Ltd. The Agreement 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.
Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 February 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Healthscope Operations Pty Ltd applied for approval of the Enterprise Agreement between itself and the NSW Nurses’ and Midwives’ Association (Healthscope and the Association, respectively) for the period 2020 to 2024. The matter was heard by the Fair Work Commission. The applicant employer sought approval of the Enterprise Agreement for the purpose of section 235 of the Fair Work Act 2009. The applicant union sought a declaration that the enterprise agreement was a low paid industry award, which would allow it to apply for a pay rise under section 113 of the Act. The questions the court had to decide were whether the enterprise agreement was a ‘better off overall test’ (BOOT) agreement and, if so, whether it should be approved.

The court found that the enterprise agreement was a BOOT agreement. The agreement provided for a pay rise of between 1.5 per cent and 3 per cent for all employees. The agreement also contained provisions that were better than the relevant industry award, including provisions about shift penalties, penalty rates for Sunday work and penalty rates for public holidays. The court also found that the enterprise agreement did not have any adverse flow-on effects. The applicant employer submitted that the agreement would result in adverse flow-on effects for other employers in the health services industry, but the court found that there was no evidence to support this submission. The court approved the enterprise agreement. The court also found that the enterprise agreement was not a low paid industry award. The applicant union submitted that the agreement was a low paid industry award because it provided for annualised salaries, but the court found that this was not correct. The court found that the agreement did not meet the definition of a low paid industry award because it did not provide for a nationally uniform system of wages and conditions. The court dismissed the application for a declaration that the enterprise agreement was a low paid industry award.

The court approved the enterprise agreement and dismissed the application for a declaration that the enterprise agreement was a low paid industry award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established