St Andrew’s Toowoomba Hospital

[2023] FWCA 3060

[2023] FWCA 3060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

St Andrew’s Toowoomba Hospital

(AG2023/3138)

ST ANDREW’S TOOWOOMBA HOSPITAL AND ANMF/QNMU-NURSES-ENTERPRISE AGREEMENT 2023-2025

Health and welfare services
COMMISSIONER LIM	PERTH, 28 SEPTEMBER 2023

Application for approval of the St Andrew’s Toowoomba Hospital and ANMF/QNMU-Nurses-Enterprise Agreement 2023-2025

1. St Andrew’s Toowoomba Hospital has made an application for the approval of an enterprise agreement known as the St Andrew’s Toowoomba Hospital and ANMF/QNMU-Nurses-Enterprise Agreement 2023-2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the

Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 24 January 2023.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. The title of the agreement in the NERR differed from the title contained in clause 1.1 of the Agreement. Pursuant to s 188(2) of the Act (as it was prior to 6 June 2023), I am satisfied that the agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

1. I note that clause 4.5.2(f) of the agreement states ‘…the shortfall may be recovered from any final monies payable to the employee on termination’. It may be that employees receive less than what they are entitled to on termination. Clause 7.2.3 states an employer and the employees may, by agreement, substitute another day for a public holiday. However, s.115 (3) provides for agreement with a singular employee. Clause 7.8 does not appear to provide leave for the permissible occasion of miscarriage or stillbirth, as per s.104 of the Act. However, noting clause 1.5 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The Queensland Nurses and Midwives’ Union (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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 28 September 2023 and, in accordance with s 54, will operate from 5 October 2023.  The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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