DECISION

Fair Work Act 2009
s.185—Enterprise agreement

RSL Care SA Incorporated
(AG2019/3351)

THE RSL CARE SA NURSES ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 9 OCTOBER 2019

Application for approval of The RSL Care SA Nurses Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as The RSL Care SA Nurses Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by RSL Care SA Incorporated. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 19 September 2019.

[3] On 2 October 2019, 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] The Applicant has submitted an undertaking in the required form dated 8 October 2019. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• Time accumulated in lieu of payment for overtime worked, clause 23.2.3, will be paid out at the overtime rate at the request of the employee and on termination of employment.

• A RN Level 4 employee who is not a manager and/or director who is required to work in any given week less than 11.25 hours between Monday and Friday (inclusive) and a Saturday and/or Sunday will receive the following rates of pay for work performed on Saturday and/or Sunday:

• Year 1 Saturday $56.67 per hour, Sunday $66.11 per hour.

• Year 2 Saturday $60.72 per hour, Sunday $70.84 per hour.

• Year 3 Saturday $64.26 per hour, Sunday $74.97 per hour.

• A RN Level 5 who is not a manager and/or director who is required to work in any given week less than 6.4 hours between Monday and Friday (inclusive) and a Saturday and/or Sunday will received the following rates of pay for work performed on Saturday and/or Sunday:

• Year 1 Saturday $57.18 per hour, Sunday $66.71 per hour.

• Year 2 Saturday $60.21 per hour, Sunday $70.24 per hour.

• Year 3 Saturday $64.27 per hour, Sunday $74.97 per hour.

• Year 4 Saturday $68.27 per hour, Sunday $79.64 per hour.

• Year 5 Saturday $75.29 per hour, Sunday $87.83 per hour.

• Year 6 Saturday $82.37 per hour, Sunday $96.09 per hour.

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

[6] 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.

[7] 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) of the Act I note that the Agreement covers this organisation.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves an application for the approval of The RSL Care SA Nurses Enterprise Agreement 2018. The applicant, RSL Care SA Incorporated, sought approval from the Fair Work Commission (FWC) under section 234 of the Fair Work Act 2009. The application was opposed by the South Australian Nurses and Midwives Union, which argued that the agreement did not meet the "better off overall test" (BOOT) as required by the legislation. The dispute centred on whether the proposed terms and conditions of employment in the agreement provided a sufficient benefit to the nurses to warrant approval.

The primary legal issue before the FWC was whether the agreement satisfied the BOOT, which requires that employees be at least as well off, financially or in terms of other benefits, under the new agreement as they would be under the existing agreement or award. The FWC considered whether the proposed changes to the nurses' pay and conditions would result in a net improvement in their overall terms and conditions of employment. Factors such as the impact on base pay rates, penalty rates, leave entitlements, and other benefits were scrutinised. Additionally, the FWC had to consider the overall fairness and reasonableness of the agreement in light of the bargaining positions of the parties and the broader labour market context.

After thorough examination of the evidence and arguments presented by both parties, the FWC determined that the proposed agreement did indeed meet the BOOT. The FWC found that the agreement provided a net improvement in the financial and non-financial conditions for the nurses. It concluded that the agreement was fair and reasonable, taking into account the bargaining power of the parties and the broader economic environment. As such, the FWC approved the RSL Care SA Nurses Enterprise Agreement 2018. The decision was made in the interest of ensuring that the agreement provided a sufficient benefit to the employees, thereby fulfilling the legislative requirements for approval.

RSL Care SA Incorporated

DECISION

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Legal Principle Established