St Andrew's Toowoomba Hospital

[2024] FWCA 3163

[2024] FWCA 3163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

St Andrew's Toowoomba Hospital

(AG2024/2507)

ST ANDREW'S TOOWOOMBA HOSPITAL - CLERICAL ENTERPRISE AGREEMENT 2024-2026

Health and welfare services
DEPUTY PRESIDENT SLEVIN	SYDNEY, 2 SEPTEMBER 2024

Application for approval of a single-enterprise agreement

1. St Andrew's Toowoomba Hospital has applied for approval of an enterprise agreement known as the Pierce Engineering Pty Ltd Enterprise Agreement 2024 (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. The Commission must approve the Agreement if satisfied that the requirements in ss 186 and 187 are met.

1. Section 186(2)(c) requires that the Agreement not exclude the National Employment Standards. An issue was raised as Agreement provided a more restrictive definition of a shiftworker than Clause 27.2 of the Award. In response the Applicant provided am undertaking.

1. Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s 193 of the Act and it is to be applied in accordance with s 193A. Under s 193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award.  

1. Here the relevant award is Health Professionals and Support Services Award 2020 In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application.  

1. An issue was raised as the rates of pay for Clerk Level 1 Year 3 employees are 0.03% below the Award for full and part time employees and 0.02% below for casuals. In response to this the Applicant provided a specific undertaking ensuring those rates were above the Award.

1. A further issue was raised in relation to Supported Wages. Schedule C of the Agreement provides for a supported wage system and states that the minimum amount payable must be not less than $102 per week. This is less than the $106 per week provided for at Schedule F of the Award. In response to this the Applicant provided an undertaking.

1. Additional issues were raised in relation to Casual employees. Clauses 4.3.4(iii), 4.3.5(c) and 4.3.6(c) of the Agreement provide that in the instance of a casual employee, the Shift/weekend/Public Holiday Penalty Rate prescribed shall be calculated on the relevant rate of pay exclusive of casual loading. The Award provides for casual employees to receive these penalties as well as the casual loading on a cumulative basis. In response to this the Applicant provided an undertaking.

1. Clause 3.4 of the Agreement provides minimum engagement for casuals is 2 hours. This is less than the 3 Hours provided by Clause 11.2 of the Award. In response to this the Applicant provided an undertaking.

1. Given the explanations provided by the applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met.

1. A copy of the undertakings in relation to the matters raised is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement

1. The Agreement does not cover all employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. Having regard to the undertakings and the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.

1. The Agreement was approved on 2 September 2024, and, in accordance with s.54, will operate from 9 September 2024. As per Clause 1.2 the nominal expiry date is 31 January 2026

1. The Applicant advised the Commission advising that due to an administrative error, a number of wage rates in Table 1 of Schedule B of the Agreement are lower than intended and a corrected wage table has been provided. The errors relate to the hourly wage rates in the table which were incorrectly calculated. This had an impact on the way the rates of pay were recorded in the table for employees at Clerk level 2, Clerk level 4 and Clerk level 5 levels.  The Applicant requests that the Agreement be varied to reflect properly calculated increases for these classifications.

1. I consider that the table contains defects that are amenable to variation in accordance with s. 218A as requested by the Applicant. No objection was taken to this course by QNurses First Inc. Consequently, I order that the Agreement be varied to replace table in Schedule B with the table annexed to this decision as Annexure B. The variation is to take effect from 9 September 2024     

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A

Annexure B