PERH Pty Ltd T/A Eden Rehabilitation Hospital

[2019] FWCA 4548

[2019] FWCA 4548

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PERH Pty Ltd T/A Eden Rehabilitation Hospital
(AG2019/29)

HEALTH CARE (GYMPIE PRIVATE HOSPITAL, EDEN REHABILITATION HOSPITAL AND MACKAY REHABILITATION HOSPITAL) SUPPORT SERVICES ENTERPRISE AGREEMENT 2018

Health and welfare services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 17 JULY 2019

Application for approval of the Health Care (Gympie Private Hospital, Eden Rehabilitation Hospital and Mackay Rehabilitation Hospital) Support Services Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Health Care (Gympie Private Hospital, Eden Rehabilitation Hospital and Mackay Rehabilitation Hospital) Support Services Enterprise Agreement 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by PERH Pty Ltd T/A Eden Rehabilitation Hospital (Employer). The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] The application was not lodged within 14 days after the agreement was made. It was lodged on the 15^th day, immediately following Christmas and New Year leave periods. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application to the date it was actually made.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES). However, noting Clause 6 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:

•  Clause 23(c) of the Agreement, which states that where the pregnancy of an employee not then on maternity leave terminates after 28 weeks other than by the birth of a living child, then the employee is entitled to special maternity leave and personal leave;

•  Clause 24(h)(i) of the Agreement, which qualifies the entitlement to carer’s leave to an employees’ immediate family member only;

•  Clause 24(h)(ii) of the Agreement, which states that an employee must not take carer’s leave where another person has taken leave to provide care or support for the same person; and

•  Clause 29(a)(ii) of the Agreement, which states that for service prior to the commencement of this Agreement, long service leave entitlements shall be as at 2 January 1996.

[6] The Australian Municipal, Administrative, Clerical and Services Union, 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 July 2019. The nominal expiry date of the Agreement is 30 September 2020.

DEPUTY PRESIDENT

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Annexure A