Kaizen Hospitals (Malvern) Pty Limited Trading AS Malvern Private Hospital

[2025] FWCA 2117

[2025] FWCA 2117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kaizen Hospitals (Malvern) Pty Limited Trading AS Malvern Private Hospital

(AG2025/1680)

MALVERN PRIVATE HOSPITAL & ANMF ENTERPRISE AGREEMENT 2025

Health and welfare services
COMMISSIONER CLARKE	MELBOURNE, 27 JUNE 2025

Application for approval of the Malvern Private Hospital & ANMF Enterprise Agreement 2025

1. An application has been made for approval of a single enterprise agreement known as the Malvern Private Hospital and ANMF Enterprise Agreement 2025. The application was made pursuant s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Kaizen Hospitals (Malvern) Pty Ltd (employer).

1. The Australian Nursing and Midwifery Federation, (ANMF), being a bargaining representative for the agreement, has given notice under s.183 that it wants the Agreement to cover the ANMF. In accordance with s.201(2) I therefore note that the Agreement covers the ANMF. By way of declaration in form F18, the ANMF has supported the approval of the Agreement.

1. Prior to approving the agreement, it was necessary to make some further enquiries of the bargaining representatives in relation to following matters:

(a)   The bargaining representatives were invited to make submissions pursuant to section 188(5)(a) having regard to the fact that the (NERR) provided with the application contained additional content to that prescribed;

(b)   The bargaining representatives were invited to make submissions concerning clause 35.1(d) of the agreement (which provided for public holiday substitution by majority agreement rather than on an individual basis) and specifically whether clause 7 of the agreement (an NES precedence term) resolved any section 56 difficulties or whether an undertaking ought to be provided. The bargaining representatives were provided with a link to the decision of the Full Bench in 4 yearly review of modern awards – Plain language redrafting [2019] FWCFB 5145 to assist in responding to this matter.

(c)   In light of the low voter turnout and the fact that the majority of employees proposed to be covered by the agreement were casual employees, the bargaining representatives were invited to provide information concerning whether the employees who voted at the time included all and only employees “employed at the time” in the sense in which expression is used in subsection 181(1). The bargaining representatives were provided with a link to the decision of Commissioner Matheson in Monadelphous Engineering Pty Ltd [2025] FWCA 1123 to assist in responding to this matter.

1. Both bargaining representatives responded to these concerns and in doing so it became apparent that the ANMF played an active role in the approval stage and fully cooperated in the pre-approval steps. The nature of those responses, and my consideration of them, are as follows:

(a)   It was submitted that the introductory blurb and presence of the employer’s logo on the NERR ought to be treated as minor technical or procedural errors. All required content of the NERR was present. I agree. The substantive alteration to the required form was to “top and tail” it. The introductory message read:

“Attention all nurses of MPH. Tomorrow you will be meeting with Cate from the ANMF. She will discuss with you an update to our EBA. The review of our EBA is to ensure you have a say on wages, and rights in relation to your workplace and conditions. Please speak to your representative or myself with any feedback”

The NERR concluded with “Yours truly” and a signature block of the Hospital Director and Director of nursing. There was no issue with the timing or distribution of the NERR. The anodyne additions to the NERR are such that I am comfortably satisfied that the employees were not likely to be disadvantaged by the errors. If anything, the additions demonstrated the employer’s commitment to respecting the right of the employees concerned to be represented in bargaining.

(b)   The employer supported the ANMF’s position that the provision providing for the substitution of public holidays by majority agreement (to the exclusion of individual agreement) was “operationally reasonable” in light of the small size of the employer. The ANMF submitted that was “comfortable with the right as it expressed currently”, and, as above, the employer adopted this position too. Whilst it may be the case that a majority in a particular instance is comprised of one hundred percent, in the situation where the position is not unanimous the position cannot be as the bargaining representatives would prefer to have it. The Full Bench has given detailed to consideration to the question of whether Modern Award provisions which provide for the substitution of public holidays by majority agreement (rather than individual agreement) excluded the NES or were supplemental or ancillary to them, and answered those questions “yes” and “no” respectively.[1] There have been no submissions advanced as to why that position was wrongly decided or why a different position should be adopted with respect to enterprise agreements in the application of sections 55 and 56. Whilst the employer has declined to provide an undertaking to address this concern, I consider that the NES precedence clause at clause 7 of the Agreement (which operates where the NES confers a more favourable benefit to an employee) will operate to ensure that employees’ individual rights to make agreements concerning the substitution of the agreement are preserved. Accordingly, no such undertaking is necessary.

(c)   The employer has provided information concerning its practices with respect to casual employees. In essence, the employer reviews its casual workforce every three months having regard to their acceptance of work over that period. Such a review was concluded shortly before the vote. The employer is certain that each casual employee who was asked to vote on the agreement either did work during voting period or had during the voting been provided with a roster to work thereafter. It is also certain that each of those casual employees who were asked to vote were provided with the agreement and the relevant explanatory materials 9 days before the voting period started. In the circumstances, I am satisfied that the voting cohort included all casual employees (and only those casual employees) who were “employed at the time” in the relevant sense, because the employer has established the actuality and currency of their casual employment during the voting period and the period immediately preceding it.

1. In light of the matters referred to above and having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met. The undertakings are taken to be at term of the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 July 2025. The nominal expiry date of the agreement is 5 July 2028.

COMMISSIONER

[1] [2019] FWCFB 5145 at [33]-[45].

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