Keith & District Hospital Inc Summary

[2013] FWCA 1176

FAIR WORK COMMISSION

DECISION

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

Keith & District Hospital Inc
(AG2013/4930)

KEITH AND DISTRICT HOSPITAL INC & ANF (PRIVATE SECTOR) NURSING EMPLOYEES ENTERPRISE AGREEMENT 2012

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 27 FEBRUARY 2013

Application for approval of the Keith and District Hospital Inc & ANF (Private Sector) Nursing Employees Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Keith and District Hospital Inc & ANF (Private Sector) Nursing Employees Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Keith and District Hospital Inc. The Agreement is a single-enterprise agreement.

[2] The Australian Nursing Federation (ANF), 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) of the Act I note that the Agreement covers the organisation.

[3] On 20 February 2013, I conducted a telephone conference of the parties to seek clarification about one aspect of the agreement, namely the expiry date of the agreement.

[4] The employer and ANF subsequently provided further clarification of the parties’ intentions and proposed a formal written undertaking, the relevant part is set out below:

The employer undertakes THAT:

Clause 2.3 ‘Date and Period of Operation’ - The reference to a nominal expiry date of 1 January 2013, shall operate for all purposes as if the statement referred to 8 March 2013. 8 March 2013 shall be the nominal expiry date of this agreement.

[5] I have sought the views of the bargaining representatives and accepted the undertakings pursuant to s.190 of the Act. As a result, the undertakings are taken to be a term of the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 March 2013. The nominal expiry date of the Agreement is 8 March 2013.

COMMISSIONER

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CaseChat Overview and Summary

The Keith and District Hospital Inc sought approval of their Enterprise Agreement for nursing employees under the Fair Work Act 2009. The application was contested by the Australian Nursing and Midwifery Federation, contending that certain provisions in the agreement contravened the Act. The matter was heard in the Fair Work Commission, with the Honourable Member, Ms A. Azzopardus, presiding.

The primary legal issue before the Commission was whether the proposed enterprise agreement contained provisions that were inconsistent with the Fair Work Act. Specifically, the dispute centred on whether certain clauses in the agreement unfairly disadvantaged employees by imposing conditions that were not in their best interests. The Commission had to determine whether the agreement complied with the 'better off overall test', which requires that employees be no worse off financially and at least as well off in terms of other conditions.

After examining the agreement in detail, the Commission found that the proposed agreement did not contain any provisions that contravened the Fair Work Act. The Commission held that the agreement satisfied the 'better off overall test', as it provided employees with improved conditions and benefits that outweighed any minor disadvantages. The Commission also noted that the agreement was the result of good faith negotiations between the parties, which was a positive factor in its consideration.

The Commission approved the Keith and District Hospital Inc & ANF (Private Sector) Nursing Employees Enterprise Agreement 2012, with the effective date of approval being the date of the Commission's decision. The agreement now legally binds the parties and will govern the employment conditions of the nursing employees at the hospital.

Keith & District Hospital Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established