New South Wales Nurses and Midwives Association

[2023] FWCA 1141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

New South Wales Nurses and Midwives Association

(AG2023/849)

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION AND AUSTRALIAN NURSING AND MIDWIFERY FEDERATION NEW SOUTH WALES BRANCH EMPLOYMENT ENTERPRISE AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT EASTON	SYDNEY, 20 APRIL 2023

Application for approval of the New South Wales Nurses and Midwives’ Association and Australian Nursing and Midwifery Federation New South Wales Branch Employment Enterprise Agreement 2023.

New South Wales Nurses and Midwives Association (Employer) has made an application for the approval of the New South Wales Nurses and Midwives’ Association and Australian Nursing and Midwifery Federation New South Wales Branch Employment Enterprise Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a multi-enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Nursing and Midwifery Federation – New South Wales Nurses and Midwives’ Association Appointed Officers Branch (NSWNMA AOB) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) were bargaining representatives for the Agreement and 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 NSWNMA AOB and ASU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 April 2023. The nominal expiry date of the Agreement is 1 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the New South Wales Nurses and Midwives’ Association and the Australian Nursing and Midwifery Federation New South Wales Branch for approval of their Employment Enterprise Agreement 2023. The applicants sought to have the agreement approved as a registered agreement under the Fair Work Act 2009, which would provide it with legal enforceability. The dispute centred around the compliance of the agreement with various statutory provisions and its overall fairness and effectiveness in addressing the employment conditions of the parties involved.

The primary legal issues before the Commission included whether the agreement met the requirements for registration under the Fair Work Act, including the absence of prohibited content, the presence of good faith bargaining, and the suitability of the agreement for the intended workforce. Additionally, the Commission needed to determine if the agreement was fair and effective in addressing the employment conditions of the parties, and whether it met the public interest test by promoting harmonious, productive, and cooperative workplace relations.

In reaching its decision, the Commission considered the submissions from both the applicants and the respondents, as well as the broader context of the agreement. The Commission found that the agreement complied with the statutory requirements for registration, including the absence of prohibited content and the presence of good faith bargaining. The Commission also concluded that the agreement was fair and effective in addressing the employment conditions of the parties and met the public interest test by promoting harmonious, productive, and cooperative workplace relations. Accordingly, the Commission approved the agreement as a registered agreement under the Fair Work Act.

The Commission ordered that the Employment Enterprise Agreement 2023 between the New South Wales Nurses and Midwives’ Association and the Australian Nursing and Midwifery Federation New South Wales Branch be approved as a registered agreement. This decision grants the agreement legal enforceability and ensures that the terms and conditions outlined within it are binding on the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established