Serco Australia Pty Ltd

[2022] FWCA 1755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Serco Australia Pty Ltd

(AG2022/1453)

Serco AHSC Nurses’ Enterprise Agreement 2022

Health and welfare services
COMMISSIONER MATHESON	SYDNEY, 27 MAY 2022

Application for approval of the Serco AHSC Nurses’ Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Serco AHSC Nurses’ Enterprise Agreement 2022 (Agreement). The application was made by Serco Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 2.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

The Australian Nursing and Midwifery Federation, 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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 June 2022. The nominal expiry date of the Agreement is 7 April 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Serco Australia Pty Ltd, an application was made to the Fair Work Commission for approval of the Serco AHSC Nurses’ Enterprise Agreement 2022 (Agreement). The applicant, Serco Australia Pty Ltd, sought approval under section 185 of the Fair Work Act 2009 (Cth). The Agreement, a single enterprise agreement, was proposed to cover nurses working in health and welfare services. The Commission, under Commissioner Matheson, was tasked with determining whether the Agreement met the statutory requirements for approval and if it complied with the National Employment Standards (NES).

The primary legal issue before the Commission was whether the provisions of the Agreement complied with the requirements of sections 186, 187, and 188 of the Act, and whether the Agreement met the criteria for approval. A significant consideration was whether the Agreement provided at least the minimum entitlements set out in the NES. The Commission also had to ensure that the Agreement was supported by the relevant bargaining representatives and that it covered the intended organisation.

The Commission found that, while certain provisions of the Agreement might be inconsistent with the NES, clause 2.4 of the Agreement ensured that the more beneficial entitlements of the NES would prevail in cases of inconsistency. Commissioner Matheson determined that the Agreement met all the relevant requirements for approval under the Act. The Australian Nursing and Midwifery Federation, a bargaining representative for the Agreement, had indicated its support for the Agreement to cover its members. The Commission approved the Agreement, which will operate from 3 June 2022, with a nominal expiry date of 7 April 2025.

The Commission approved the Agreement, and it will take effect from 3 June 2022, with an expiry date of 7 April 2025. This decision ensures that the Agreement provides the necessary protections and entitlements to the nurses, while also meeting the statutory requirements for enterprise agreements under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established