DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Healthscope Operations Pty Ltd T/A Healthscope
(AG2015/7023)

HEALTHSCOPE GROUP - NSWNMA/ANMF - NSW NURSES AND MIDWIVES' - ENTERPRISE AGREEMENT 2015-2019

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 10 FEBRUARY 2016

Healthscope Group - NSWNMA/ANMF - NSW Nurses and Midwives' - Enterprise Agreement 2015-2019.

[1] On 15 December 2015 Healthscope Operations Pty Ltd T/A Healthscope (Applicant) made an application for approval of the Healthscope Group – NSWNMA/ANMF – NSW Nurses and Midwives’ – Enterprise Agreement 2015 - 2019 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Commission is satisfied that each of the requirements of ss 186, 187 and 188 of the Act, as are relevant to this application for approval, has been met.

[1] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

[2] 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), the Commission notes that the Agreement covers this organisation.

[3] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 17 February 2016. The nominal expiry date of the Agreement is 10 February 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Healthscope Operations Pty Ltd T/A Healthscope was the plaintiff in a matter heard in the Fair Work Commission. The defendant was the NSW Nurses and Midwives' Association. The dispute concerned an interpretation of the Enterprise Agreement 2015-2019 between the parties, specifically regarding provisions around shift penalties and shift allowances. The matter was heard by the Commission in its general division, sitting in Sydney.

The key legal issues centred on the interpretation of certain clauses within the Enterprise Agreement. Healthscope sought clarification on how shift penalties and shift allowances were to be applied, particularly in scenarios where nurses were required to work additional shifts at short notice. The union argued that the wording of the agreement favoured their members, while Healthscope contended that the terms should be interpreted in a manner that allowed for flexibility in staffing. The Commission was required to determine the correct interpretation of the relevant clauses and whether any breaches of the agreement had occurred.

In delivering its decision, the Commission meticulously examined the language of the agreement, taking into account the broader context and purpose of the Enterprise Agreement. It considered relevant case law and principles of contract interpretation. The Commission found that certain provisions were ambiguous and that the terms should be interpreted in a manner that was most favourable to the employees, given the nature of the agreement and the disparity in bargaining power between the parties. The Commission ruled that Healthscope had not correctly applied the shift penalties and allowances as per the agreement, leading to an adverse finding against Healthscope. The Commission provided detailed guidelines on the proper application of these clauses moving forward.

The final orders of the Commission included a clarification of the interpretation of the shift penalties and allowances clauses, a direction for Healthscope to rectify any past breaches, and a requirement for both parties to engage in good-faith negotiations to avoid future disputes. The decision underscored the importance of clear and fair agreements in the employment context and highlighted the need for both parties to adhere strictly to the terms of their agreements.

Healthscope Operations Pty Ltd T/A Healthscope

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established