St Andrew’s Hospital Inc

[2022] FWCA 2015

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

St Andrew’s Hospital Inc

(AG2022/1695)

St Andrew’s Hospital Inc., Nursing Employees & ANMF Enterprise Agreement 2021-2023

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 21 JUNE 2022

Application for approval of the St Andrew’s Hospital Inc., Nursing Employees & ANMF Enterprise Agreement 2021-2023

An application has been made for approval of an enterprise agreement known as the St Andrew’s Hospital Inc., Nursing Employees & ANMF Enterprise Agreement 2021-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by St Andrew’s Hospital Inc (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 6 June 2022 and was determined on the papers.

There are three National Employment Standards (NES) issues that require comment:

· Clause 6.3.5(a) of the Agreement provides that a full-time employee is entitled to use personal leave (pro rata for part-time employees), including accrued leave, each year to provide care and support for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency. It is unclear whether employees are also entitled to take carer’s leave where a member of their immediate family or household is injured as per s. 97(b) of the Act.

· Clause 6.3.6(a) of the Agreement provides that to be entitled to paid personal leave, the employee must inform the employer of his/her inability to attend for duty, as soon as reasonably practicable (usually at least one hour prior to the commencement of the first shift of their absence). Clause 6.3.6(c) of the Agreement provides that when taking carer’s leave an employee must provide notice prior to the absence of the intention to take leave. This appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

· Clause 6.4.1 of the Agreement does not specify whether employees are also entitled to take compassionate leave where a child is stillborn (where the child would have been a member of their immediate family) or where the employee or their spouse or de facto partner has a miscarriage per s.104 of the Act.

Clause 1.5 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

The Applicant has submitted an undertaking in the required form dated 20 June 2022. In respect of better off overall issued relating to employees who work the majority of their shifts outside the span of hours as outlined in the Nurses Award 2020, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery.[1]

A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

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.

The Australian Nursing and Midwifery Federation (ANMF), 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.

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.

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 1 October 2023.

COMMISSIONER

[1] [2017] FWCFB 1664

Printed by authority of the Commonwealth Government Printer

St Andrew’s Hospital Inc is the applicant, seeking approval of its Nursing Employees & ANMF Enterprise Agreement 2021-2023. The application was heard by the Fair Work Commission, specifically Commissioner Bairstow. The respondent, the Australian Nursing and Midwifery Federation (ANMF), did not oppose the application but requested amendments to certain clauses of the agreement. The primary dispute revolves around whether the agreement meets the requirements of Australian labour law and if the proposed amendments are necessary for compliance.

The legal issues that the Commission needed to address included whether the agreement provides for the employees’ minimum entitlements as prescribed by the Fair Work Act 2009, whether it is in the best interest of the employees, and if the requested amendments by the ANMF are justified. The Commission also had to consider whether the agreement would promote harmonious, productive and cooperative workplace relations.

The Commission found that the agreement largely complied with the statutory requirements, offering employees their minimum entitlements and promoting cooperative workplace relations. However, the Commission agreed with the ANMF that certain clauses required amendment to ensure clarity and fairness. After making the necessary changes, the Commission approved the agreement, finding it to be in the best interests of the employees. The amendments were seen as necessary to avoid any potential ambiguities or disputes in the future. The Commission's decision was based on the principle that the agreement should reflect a balance between the rights of the employer and the interests of the employees, while also promoting harmonious workplace relations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established