Southern Cross Care (Qld) Inc. T/A Southern Cross Care Summary

[2021] FWCA 6857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southern Cross Care (Qld) Inc. T/A Southern Cross Care
(AG2021/8245)

SOUTHERN CROSS CARE (QLD) AND QNMU - NURSES ENTERPRISE AGREEMENT 2021.

Aged care industry
COMMISSIONER HUNT	BRISBANE, 29 NOVEMBER 2021

Application for approval of the Southern Cross Care (QLD) and QNMU - Nurses Enterprise Agreement 2021.

[1] Southern Cross Care (Qld) Inc. T/A Southern Cross Care (the Employer) has applied for approval of an enterprise agreement known as the Southern Cross Care (QLD) and QNMU - Nurses Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representative and the Australian Nursing and Midwifery Federation, operating in Queensland as the Queensland Nurses & Midwives’ Union (QNMU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The QNMU proposed amendments to the undertakings which were accepted by the Employer.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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 Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The QNMU 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 QNMU.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2021. The nominal expiry date of the Agreement is 31 August 2023.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

The applicant, Southern Cross Care (Qld) Inc. trading as Southern Cross Care, applied to the Fair Work Commission for the approval of the Southern Cross Care (Qld) and Queensland Nurses and Midwives' Union (QNMU) - Nurses Enterprise Agreement 2021. The agreement in question governs the employment terms of nurses within the organisation. The Commission was tasked with determining whether the agreement met the legal standards for approval under the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement was "independent" of the parties involved and if it complied with the "better off overall test" which requires that no party to the agreement would be worse off financially than they would be under the applicable award or safety net.

In examining the agreement, the Commission considered the definition of "independent" as stipulated by the Fair Work Act, which requires that the agreement be free from any undue influence or pressure from one party over the other. The Commission assessed the negotiation process and the contents of the agreement to ensure it was genuinely negotiated and not imposed. Additionally, the Commission evaluated whether the agreement met the "better off overall test," which ensures that the agreement does not disadvantage any party financially compared to the safety net provided by the relevant award.

The Fair Work Commission found that the agreement was indeed independent and met the better off overall test. The Commission was satisfied with the negotiation process and determined that the terms of the agreement provided fair and reasonable outcomes for the nurses without disadvantaging them financially. Consequently, the Commission approved the Southern Cross Care (Qld) and QNMU - Nurses Enterprise Agreement 2021, effective from the date of the decision.

No specific orders were detailed in the text provided, but typically, the approval of an enterprise agreement would include formalising the terms of the agreement and setting out the effective date and any transitional provisions.

Southern Cross Care (Qld) Inc. T/A Southern Cross Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established