DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Serco Australia Pty Ltd T/A Serco
(AG2019/2093)

SERCO - ADF HEALTH SERVICES CONTRACT (AHSC) NURSES’ COLLECTIVE AGREEMENT 2019

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 3 JULY 2019

Application for approval of the Serco - ADF Health Services Contract (AHSC) Nurses’ Collective Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Serco - ADF Health Services Contract (AHSC) Nurses’ Collective Agreement 2019 (the Agreement) pursuant to s.182(4) of the Fair Work Act 2009 (the Act) by SERCO Australia. The agreement is a single enterprise agreement that is a greenfields agreement.

[2] The matter was allocated to my Chambers on 27 June 2019.

[3] On 1 July 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 the provision of an undertaking.

[4] The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

[5] In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Nursing and Midwifery Federation (ANMF) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

[6] The Applicant has submitted an undertaking in the required form dated 2 July 2019. The undertaking deals with the following topics:

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

• Clause 35(e) will not operate in a manner inconsistent with the NES or to allow a deduction in excess of the amount of leave taken.

• Any hours worked in excess of ordinary hours defined by clause 19 of the Agreement will be overtime.

[7] I am satisfied that the reference to clause 46(i) contained in clause 46(j) is a typographical error and was intended to be a reference to Clause 46(a)(ii). I have accepted an undertaking that corrects this error and as a result I accept that the Agreement contains a consultation term which meets the requirements of s.205 of the Act.

[8] 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.

[9] 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.

[10] Pursuant to s. 53(2)(b) of the Act I note that the Agreement was made with the ANMF and that the Agreement covers this organisation.

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

[12] I am satisfied that it is in the public interest to approve the Agreement.

[13] 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 31 October 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Serco Australia Pty Ltd, trading as Serco, applied to the Fair Work Commission for approval of the Serco-ADF Health Services Contract (AHSC) Nurses’ Collective Agreement 2019. The dispute arose from the negotiation of a new collective agreement for nurses working under the contract between Serco and the Australian Defence Force. The Fair Work Commission was tasked with determining whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement complied with the procedural and substantive requirements set out in the Act. Procedurally, the Commission needed to confirm that the agreement had been negotiated in good faith and that the necessary bargaining representatives were involved. Substantively, the agreement had to be assessed for its compliance with minimum workplace standards, including provisions on wages, hours of work, and other terms and conditions of employment. The Commission also had to ensure that the agreement did not contain any terms that would undermine the right of employees to take protected industrial action.

In reaching its decision, the Fair Work Commission carefully reviewed the negotiation process and the contents of the proposed agreement. It found that the agreement was the product of good faith negotiations and involved the appropriate bargaining representatives. The Commission also determined that the agreement met all minimum workplace standards and did not include any terms that would unduly restrict employees' rights to protected industrial action. Consequently, the Commission approved the Serco-ADF Health Services Contract (AHSC) Nurses’ Collective Agreement 2019, finding it to be compliant with the legal requirements.

Serco Australia Pty Ltd T/A Serco

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established