DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sexual Health Information Networking and Education South Australia (SHINE SA) Limited T/A SHINE SA
(AG2020/3012)

SHINE SA NURSING AND MIDWIFERY EMPLOYEES & ANMF ENTERPRISE AGREEMENT 2020

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 29 OCTOBER 2020

Application for approval of the SHINE SA Nursing and Midwifery Employees & ANMF Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the SHINE SA Nursing and Midwifery Employees & ANMF Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sexual Health Information Networking and Education South Australia (SHINE SA) Limited T/A SHINE SA (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 20 October 2020.

[3] On 22 October 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] The Applicant has submitted an undertaking in the required form dated 28 October 2020. The undertaking deals with the following topics:

• A shiftworker, for the purposes of the National Employment Standards (NES), is an employee who is regularly rostered over seven days of the week and regularly works on weekends.

• Other than a casual employee, an employee accumulates 4 weeks of paid annual leave for each year of service. A shiftworker and an employee who regularly works over a 6 day roster is entitled to 5 weeks of paid annual leave.

• In relation to providing notice for taking leave, an employee must inform the Applicant as soon as reasonably practicable which may be at a time after the leave has started.

• In relation to compassionate leave, an employee’s immediate family is taken to include a member of the employee’s household.

• Public holiday substitution will only occur by agreement between the Applicant and an employee.

• If an employee fails to give the period of notice required under the Agreement, the Applicant may deduct from wages due to the employee an amount that is no more than 1 week’s wages.

• For the purpose of calculating overtime and public holiday pay for casual employees, ordinary rates of pay for casual employees are the loaded rates of pay which are inclusive of the 25% casual loading in accordance with clause 4.4.1 of the Agreement.

• A casual employee will be paid shift allowances calculated on the ordinary rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay.

• Upon termination, any untaken TOIL balance will be paid to the employee at the overtime rate applicable when the work was performed.

• The Applicant will not ordinarily be operating on Sundays. Any work performed on a Sunday will be considered overtime and will be paid in accordance with clause 6.8.l(ii).

[5] 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 did not express any view on 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, 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 after the date of approval of the Agreement. The nominal expiry date is 30 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicants, Sexual Health Information Networking and Education South Australia (SHINE SA) Limited, sought approval for the SHINE SA Nursing and Midwifery Employees & ANMF Enterprise Agreement 2020. The Federal Court was tasked with examining the fairness of the proposed agreement, which governs the employment terms of nursing and midwifery staff within the organisation. The application was made under the Fair Work Act 2009, which mandates that any enterprise agreement must be assessed for its compliance with certain criteria, including its fairness in terms of procedural fairness, and its alignment with broader industrial principles.

The legal issues before the court revolved around whether the proposed agreement was procedurally fair and whether it met the requirements for substantive fairness. Procedural fairness involved ensuring that the bargaining process was conducted in an appropriate manner, with adequate consultation and representation of the employees. Substantive fairness examined whether the terms of the agreement were reasonable and balanced, taking into account the economic and social context. The court also had to consider whether the agreement included appropriate mechanisms for resolving disputes and ensuring workplace health and safety.

The court examined the evidence provided regarding the bargaining process, including the steps taken to ensure that the employees were adequately consulted and represented. The court found that the process was conducted in a manner that met the standards of procedural fairness, as the applicants had taken reasonable steps to involve the employees and their representatives. In terms of substantive fairness, the court evaluated the terms of the agreement against the relevant industrial benchmarks and considered whether the provisions were reasonable and appropriate. The court concluded that the agreement was fair and balanced, taking into account the specific circumstances of the employees and the organisation. The agreement included provisions that aligned with broader industrial principles and provided for adequate mechanisms for dispute resolution and workplace health and safety.

The court approved the SHINE SA Nursing and Midwifery Employees & ANMF Enterprise Agreement 2020, finding it to be procedurally and substantively fair. The agreement was registered, and the terms would govern the employment conditions of the nursing and midwifery staff at SHINE SA. The court's decision provided certainty and stability for both the employees and the organisation, ensuring that the agreement was in compliance with the requirements of the Fair Work Act 2009.

Sexual Health Information Networking and Education South Australia (SHINE SA) Limited T/A SHINE SA

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established