Mildura District Hospital Fund Ltd T/A Mildura Health Private Hospital

[2024] FWCA 4356

[2024] FWCA 4356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mildura District Hospital Fund Ltd T/A Mildura Health Private Hospital

(AG2024/3910)

MILDURA HEALTH PRIVATE HOSPITAL NURSES ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 9 DECEMBER 2024

Application for approval of the Mildura Health Private Hospital Nurses Enterprise Agreement 2024

1. Mildura District Hospital Fund T/A Mildura Health Private Hospital (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single-enterprise agreement known as the Mildura Health Private Hospital Nurses Enterprise Agreement 2024 (the Agreement).

1. The ​Australian Nursing and Midwifery Federation (ANMF)​ 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. 

1. Question 23 of the Form F17B identifies several errors in the Agreement that the Employer submits should be corrected as obvious errors, defects or irregularities and has provided an updated copy of the Agreement. The errors identified are as follows:

   ·  Page numbering throughout the entire Agreement;

·  Clause 21.12 referred to clause 0 rather than to clause 39;

·  Clause 40.7 referred to clause 0 rather than to clause 40.1;

·  Clause 40.8 referred to clause 0 rather than to clause 36;

·  Clause 40.13 referred to clause 0 and/or clause 0 rather than to clause 40.6 and/or clause 40.7; and

·  Clause 43.7 referred to clause 44 rather than to clause 45.7.

1. I am satisfied that these were minor procedural or technical errors and that the employees were not likely to have been disadvantaged by them. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard these errors. 

1. The following provisions may be inconsistent with the National Employment Standards (NES):

   ·  Clause 2 of the Agreement, which defines a member of an employee’s household for the purposes of the personal/carer’s leave notice requirements, appears to go beyond the scope of s.107 of the Act.

·  Clause 40.12 of the Agreement states that the Employer and the employees may, by agreement, substitute another day for a public holiday. This appears to be inconsistent with s.115(3) of the Act which provides that such substitution may only occur by agreement between the employer and an individual employee.

·  Clause 23.5 appears to allow the employer to withhold pay entitlements of an employee on public holidays in certain circumstances which are not provided for in the NES. 

1. However, noting clause 5.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. 

1. Clause 2 of the Agreement defines a shift worker. It is unclear whether the definition in clause 2 is the definition of shift worker for the purposes of the NES. The Employer has provided an undertaking that a shift worker as defined in clause 2 is a shift worker for the purposes of the NES.

1. Clause 21 of the Agreement provides that Registered Undergraduate Students of Nursing (RUSON) and Midwifery (RUSOM) are types of employment under the Agreement, and includes a number of related provisions. The Agreement does not appear to contain rates for these groups of employees. The Employer has provided an undertaking to resolve this issue.

1. Clause 37 of the Agreement provides for weekend penalties which are paid on the ordinary rate of pay. It is unclear whether this is inclusive of the casual loading. In Australian Nursing and Midwifery Federation v Domain Aged Care (Qld) Pty Ltd T/A Opal Aged Care [2019] FWCFB 1716, it was clarified that casual employees should receive weekend penalties based on the aggregate of the ordinary hourly rate and the casual loading. Casual employees working weekend shifts in isolation may not be better off overall if they are not paid the compounded rates. The Employer has provided an undertaking to resolve this issue.

1. 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. The undertakings are taken to be a term of the Agreement. 

1. Subject to the undertakings referred to above, 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. 

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 December 2024. The nominal expiry date of the Agreement is 30 June 2027. 

COMMISSIONER

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Annexure A