South Coast Private Pty Ltd T/A South Coast Private Hospital
[2022] FWCA 2716
•11 AUGUST 2022
| [2022] FWCA 2716 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
South Coast Private Pty Ltd T/A South Coast Private Hospital
(AG2022/2306)
Aurora Healthcare (New South Wales Hospitals) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022-2024
| Health and welfare services | |
| DEPUTY PRESIDENT EASTON | SYDNEY, 11 AUGUST 2022 |
Application for approval of the Aurora Healthcare (New South Wales Hospitals) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022-2024.
South Coast Private Pty Ltd T/A South Coast Private Hospital (the Applicant) has made an application for the approval of the Aurora Healthcare (New South Wales Hospitals) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022-2024 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act).
The Agreement is a multi-enterprise agreement, covering five employers: the Applicant, Central Lakes Hospital Pty Ltd T/A Toronto Private Hospital, Healthe Care Hirondelle Pty Ltd T/A Hirondelle Private Hospital, The Hills Clinic Pty Ltd T/A The Hills Clinic, Westmead Rehabilitation Hospital Pty Ltd T/A Westmead Rehabilitation Hospital (the Employers). The Australian Nursing and Midwifery Federation NSW Branch (ANMF) was a bargaining representative.
The Employers have provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.
Subject to the Employers’ undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.
The Notice of Employee Representational Rights (NERR) did not contain the prescribed content as required by s.174 of the Act. The Applicant submitted that Aurora Healthcare was listed on the NERR and not on the Form F16 and Form F17 as it is an entity that does not have any employees. The Applicant acknowledges the typographical error in the NERR and the omission of “-2024” in Clause 1 of the Agreement. The Applicant submits that the correct title of the Agreement should be “Aurora Healthcare (New South Wales Hospitals) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022-2024” instead of “Aurora Healthcare (New South Wales Hospitals) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022”. It says that the intention when the notice was issued was that bargaining would conclude in 2021. I am satisfied that these matters are minor procedural and/or technical errors under s.188(2) of the Act and the employees are not likely to have been disadvantaged by the errors. Pursuant to s.586 of the Act, the Agreement name is amended to “Aurora Healthcare (New South Wales Hospitals) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022-2024”.
The ANMF has raised the following issues with the Agreement:
· Definitions – Clause 6.1(n) is a less beneficial term than the equivalent term in the Nurses Award 2020 (Award) and that under the Agreement, part-time and casual employees will receive pay point progression after 1976 hours of employment, while under the Award, the same employees receive pay point progression after 1786 hours of experience (per clause 15.7(a)(ii)).
· Attendance at Meetings and Fire Drills – Clause 30 is a less beneficial term than the equivalent term in the Award and that under the Agreement, employees who are required to perform duty outside their ordinary hours of work in compulsory fire safety practices or Work Health and Safety Committee or Board of Management meetings as an employee representative will only be paid ordinary time rates of pay for their participation in these meetings. Under the Award, employees would be paid at the relevant overtime rate as outlined in Clause 19 of the Award.
The Employers indicated that Clauses 6.1(g) and 6.1(n) are legacy provisions from the Healthe Care Pty Ltd (New South Wales Hospitals) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2017 and are consistent across the Aurora group. The Employers submit that the Agreement is based on the 1976 hours of “employment”, whereas the Award is based on 1786 hours of “experience”. Under the Award, the employers say, periods of leave do not count towards the 1786 hours of “experience”, whereas periods of leave would count towards the 1976 hours of employment. In the alternate, even if there is a disadvantage for casual employees in relation to progression, those casual employees remain better off overall under the Agreement because of the taking into account the above-Award rates of pay.
The Employers also argue that Work Health and Safety Committee or Board of Management meetings only occur approximately monthly or bimonthly. These meetings are usually one hour long and take place within normal working hours. Attendees are middle managers and an employee representative who is generally higher paid (i.e. not AIN). The employers argue that even if a meeting were to occur outside of normal working hours from time to time each attendee would still be better off overall under the Agreement. I accept the Employers’ submissions in this regard.
I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 44.1.4 – Personal/Carer’s Leave
- Clause 47.2 – Compassionate Leave
- Clause 58.2.2 – Termination of Employment
Noting the undertaking provided by the Employers and the NES Precedence clause at 5.1 provided in 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.
The ANMF was a bargaining representative for the Agreement and 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 from 18 August 2022. The nominal expiry date of the Agreement is 31 March 2025.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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Annexure A
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