Ramsay Health Care (South Australia) Pty Limited T/A Adelaide Clinic Holdings Pty Ltd

[2020] FWCA 1387

[2020] FWCA 1387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ramsay Health Care (South Australia) Pty Limited T/A Adelaide Clinic Holdings Pty Ltd
(AG2020/471)

RAMSAY HEALTH CARE (SA) & ANMF-SA NURSING EMPLOYEES ENTERPRISE AGREEMENT 2020

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 18 MARCH 2020

Application for approval of the Ramsay Health Care (SA) & ANMF-SA Nursing Employees Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Ramsay Health Care (SA) & ANMF-SA Nursing Employees Enterprise Agreement 2020(the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ramsay Health Care (South Australia) Pty Limited T/A Adelaide Clinic Holdings Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 3 March 2020.

[3] On 10 March 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] With respect to the vote, I am advised that 41 employees voted and 39 of those employees voted in favour of the Agreement. It appears that two persons who were subject to an AWA were permitted to cast a vote, when they were not entitled to do so. When I take into account the 95% approval vote I am satisfied that even if the votes of the AWA cohort were removed, the Agreement would have been approved by a majority of those persons who were eligible to vote. In so far as the counting of these votes was an error I accept that it is a minor technical and/or procedural error which has not resulted in the employees being covered by the Agreement being disadvantaged, and as so far as it is necessary I exercise my discretion under s.188(2) of the Act to find that the Agreement has been genuinely agreed.

[5] The Applicant has submitted an undertaking in the required form dated 17 March 2020 The undertaking deals with the following topics:

•  Clause 6.6.4 (c) [note this is the second instance of paragraph c] (Time Off in Lieu) has been amended to extend the time by which it must be taken to six months after accrual.

•  The definition of shiftworker contained in Clause 7.1.1 (a) is also for the purposes of the NES

•  Clause 7.5.10 (Unpaid Parental Leave) has been varied so as to provide leave consistent with Section 75 of the Act.

•  Despite Clause 7.1.1.(b) all employees covered by the Agreement, who would otherwise be entitled to 5 weeks of annual leave under the Nurses Award 2010, will be entitled to 5 weeks annual leave.

•  The requirements of the Nursing Award 2010 in relation to how casual loadings are to be calculated are adopted.

•  Clause 23.3 (Rest breaks between rostered work) will not operate in a manner inconsistent with Clause 23.3 of the Nursing Award 2010.

•  Despite Clause 6.6.1, Overtime will be paid for work in excess of 76 hours per fortnight, more than 12 hours in a shift or work in excess of the parameters on ordinary hours set out in clause 21 (Ordinary hours of work) of the Nursing Award 2010.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The Australian Nursing and Midwifery Federation (SA Branch), 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 this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 July 2023.

COMMISSIONER

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