Serco Australia Pty Limited

[2025] FWCA 1368

The attached document replaces the document previously issued with the above code on 29 April 2025.

Industry name has been changed to Health and Welfare Services, and paragraph 5 has been revised to correct union.

Associate to Commissioner Redford

Dated 30 April 2025.

[2025] FWCA 1368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Serco Australia Pty Limited

(AG2025/1150)

SERCO AHSC NURSES’ ENTERPRISE AGREEMENT 2025

Health and Welfare Services
COMMISSIONER REDFORD	MELBOURNE, 29 APRIL 2025

Application for approval of the Serco AHSC Nurses’ Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as Serco AHSC Nurses’ Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Serco Australia Pty Limited (Serco). The Agreement is a single enterprise agreement.

Voting on the agreement

Correspondence was sent to the parties outlining an issue regarding the workforce. From the F17B Declaration filed in support of this application, it appeared that of the 733 employees who will be covered by the agreement, 285 were casual. Taking into account the decision of the Full Bench in Appeal by Kmart Australia Limited & Ors[1] I was concerned that if employees voted in the ballot who were not eligible to vote the outcome may have been affected. However, Serco confirmed that all of the casual employees who participated in the ballot were rostered to work one or more shifts during the relevant access period and/or subsequent two-day voting period. I am satisfied by this explanation.

Interaction with the National Employment Standards

Clause 2.4 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a greater benefit, in which case the NES provision will apply to the extent of the inconsistency (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:
1. Whereas clause 13.1 of the agreement states that employees “acknowledge that some work will need to be performed on” public holidays and Serco “may from time to time require employees to work on a public holiday”, the operation of the NES precedence clause will ensure that the provisions of s 114 of the Act will apply in any event. This means, among other things, that an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes, however an employer may request an employee to work on a public holiday if the request is reasonable.
2. Clause 22.10 of the Agreement provides that redundancy pay is not payable in some circumstances, including where Serco finds suitable alternative employment for the employee, which is declined. Section 120 of the Act deals with circumstances in which a variation to redundancy pay can be sought where an employer obtains other acceptable employment for an employee. In particular, an application is required to be made to the Commission for a determination. The operation of clause 2.4 of the Agreement – the NES precedence clause – is therefore likely to mean that despite clause 22.11, the amount of redundancy or severance pay cannot be varied without compliance with s 120 of the Act.

Consideration

Based on the foregoing 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.
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 ANMF.
The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

[1] [2019] FWCFB 7891

Printed by authority of the Commonwealth Government Printer

Serco Australia Pty Limited, the respondent, applied for approval of the Serco AHSC Nurses’ Enterprise Agreement 2025. The applicant, the Australian Nurses and Midwifery Federation, opposed the application on the basis that the enterprise agreement was not suitable for approval. The Fair Work Commission, acting under the Fair Work Act 2009, heard the matter. The central issue before the Commission was whether the enterprise agreement met the criteria for approval as stipulated under the Fair Work Act. Specifically, the Commission needed to determine if the agreement was free from any matters that would render it unsuitable for approval, such as provisions that could potentially undermine the rights of employees or the terms of the agreement that were not genuinely negotiated.

The Commission examined the agreement clause by clause, assessing its compliance with the legislative framework. It considered the nature of the provisions, the extent to which they aligned with the statutory objectives, and whether they reflected genuine bargaining between the parties. The Commission also looked into whether the agreement contained any unfair or unreasonable terms, particularly in relation to employee rights and protections. After a detailed analysis, the Commission found that the agreement was largely consistent with the statutory requirements, with only minor issues identified. These issues, however, did not significantly detract from the overall fairness and appropriateness of the agreement. Consequently, the Commission determined that the enterprise agreement was suitable for approval.

In its decision, the Commission approved the Serco AHSC Nurses’ Enterprise Agreement 2025, with the condition that certain amendments be made to address the minor issues identified. These amendments were intended to ensure that the agreement fully complied with the Fair Work Act. The Commission’s decision was grounded in a thorough review of the agreement and a balanced consideration of the interests of both parties. The final orders reflected the Commission’s determination, mandating the approval of the enterprise agreement subject to the specified amendments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established