St Andrew's Hospital Inc T/A St Andrew's Hospital Inc

[2024] FWCA 2540

[2024] FWCA 2540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

St Andrew's Hospital Inc T/A St Andrew's Hospital Inc

(AG2024/2237)

ST ANDREW’S HOSPITAL INC., NURSING EMPLOYEES & ANMF ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 10 JULY 2024

Application for approval of the St Andrew's Hospital Inc., Nursing Employees & ANMF Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the St Andrew's Hospital Inc., Nursing Employees & ANMF Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by St Andrew's Hospital Inc T/A St Andrew's Hospital Inc (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 26 June 2024.

1. On 1 July 2024, 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.

1. There is one National Employment Standard (NES) issue that requires comment:

·   Clause 3.5.1(e)(iv) provides that notice of termination provided for in Clause 3.5.1(a) does not apply during the Employee’s probationary period, during which time either party may terminate employment with 1 weeks’ notice. Notice of termination may be less than s.117 of the Act in the case that the probationary period exceeds one year, although the Agreement does not define the length probationary period it appears unlikely that a probationary period would exceed one year.

1. Clause 1.5 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 3 July 2024. The undertaking replaces Clause 3.3.2(e) with the following:

Unless otherwise provided for in this Agreement a part-time Employee who works additional hours (in addition to their regular contracted hours) will receive payment at ordinary time rates for all hours worked up to their rostered shift length, in any one day or up to 76 hours in a given fortnight. All time worked by part-time employees in excess of the rostered daily ordinary full- time hours will be overtime and will be paid as prescribed in clause 5.4.2.

1. 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 representative that responded, supported the undertaking.

1. 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.

1. 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.

1. 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.

1. 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 2026.

COMMISSIONER

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