Hobart Day Surgery Pty Ltd

[2018] FWCA 7608

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Hobart Day Surgery Pty Ltd

(AG2018/4900)

Hobart Day Surgery Pty Ltd Nurses Enterprise Agreement 2017

Health and welfare services
Commissioner Bissett	DARWIN, 14 DECEMBER 2018

Application for approval of the Hobart Day Surgery Pty Ltd Nurses Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Hobart Day Surgery Pty Ltd Nurses Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hobart Day Surgery Pty Ltd. The Agreement is a single enterprise agreement.

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.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, 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.

The Health Services Union (HSU) and Australian Nursing and Midwifery Federation (ANMF) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2018. The nominal expiry date of the Agreement is 30 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Hobart Day Surgery Pty Ltd applied for approval of the Nurses Enterprise Agreement 2017. The Fair Work Commission heard the matter, with the primary focus on whether the agreement complied with the necessary legal standards for enterprise agreements. The application was brought forth by the employer, who sought to have the agreement recognised and enforced as a binding contract between the parties.

The court was tasked with examining several key legal issues. Firstly, whether the agreement had been genuinely negotiated between the employer and the relevant union. Secondly, if the agreement covered the appropriate bargaining unit, and thirdly, whether the agreement complied with the provisions of the Fair Work Act 2009. The commission also needed to ensure that the agreement met the "better off overall test" which required that the employees were not worse off financially by being party to the agreement.

Upon reviewing the evidence presented, the Fair Work Commission found that the agreement had been genuinely negotiated between the employer and the union. The commission confirmed that the agreement appropriately covered the bargaining unit and met the requirements of the Fair Work Act 2009. Additionally, the commission determined that the agreement satisfied the "better off overall test". Consequently, the commission approved the agreement, finding that it was fair and appropriate for the purposes of enterprise bargaining.

The final order of the Fair Work Commission was that the Hobart Day Surgery Pty Ltd Nurses Enterprise Agreement 2017 be approved, effective from the date of the decision. This decision confirmed the binding nature of the agreement between the employer and the union, ensuring that it would govern the terms and conditions of employment for the relevant period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established