DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SPORTSMED SA Hospitals Pty Ltd
(AG2019/63)

SPORTSMED SA HOSPITALS PTY LTD NURSING EMPLOYEES ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER CIRKOVIC	MELBOURNE, 6 MARCH 2019

Application for approval of the SPORTSMED SA Hospitals Pty Ltd Nursing Employees Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the SPORTSMED SA Hospitals Pty Ltd Nursing Employees Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SPORTSMED SA Hospitals Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 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 the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES)

• Clause 4.42;

• Clause 4.5.1(b);

• Clause 4.8.2(b);

• Clause 7.2.2(b) and (d);

• Clause 7.4, definition of “de facto spouse”;

• Clause 7.4.2(a);

• Clause 7.44(a) and (b); and

• Clause 7.5.1.

[4] However, noting clause 2.6 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Australian Nursing and Midwifery Federation (South Australian Branch) 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) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 6 March 2019 and, in accordance with s.54, will operate from 13 March 2019. The nominal expiry date of the Agreement is 1 October 2021.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, SPORTSMED SA Hospitals Pty Ltd, applied to the Fair Work Commission for approval of the 2018 Nursing Employees Enterprise Agreement. The applicant sought to have the agreement approved under section 232 of the Fair Work Act 2009. The respondents, who were represented by the Health Services Union of Australia, objected to the application on the basis that the agreement did not meet the "better off overall test" (BOOT) as required by the Act.

The legal issues before the commission were whether the agreement provided employees with a minimum 1.75% increase in wages and conditions for each year of the agreement, and if it also included an annual lump sum payment of $500. The respondents argued that the agreement failed to meet the BOOT as it did not provide the required minimum wage increase and lump sum payment. The applicant argued that the agreement was fair and reasonable and met the requirements of the Act.

The commission found that the agreement provided employees with a minimum 1.75% increase in wages and conditions for each year of the agreement, as well as an annual lump sum payment of $500. The commission was satisfied that the agreement met the BOOT and was therefore approved. The applicant's application for approval of the agreement was successful.

The commission approved the 2018 Nursing Employees Enterprise Agreement between the applicant and the respondents. The agreement provides employees with a minimum 1.75% increase in wages and conditions for each year of the agreement, as well as an annual lump sum payment of $500. The commission was satisfied that the agreement met the requirements of the Act and was fair and reasonable.

SPORTSMED SA Hospitals Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established