St Vincent's Hospital Sydney Limited T/A St Vincent's Hospital; Karitane; Royal Society for the Welfare of Mothers & Babies T/A Tresillian; Calvary Health Care Sydney Limited T/A Calvary Health Care Sydney; Calvary...
[2018] FWCA 2526
•21 MAY 2018
| [2018] FWCA 2526 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s 185 - Application for approval of a multi-enterprise agreement
St Vincent's Hospital Sydney Limited T/A St Vincent's Hospital; Karitane; Royal Society for the Welfare of Mothers & Babies T/A Tresillian; Calvary Health Care Sydney Limited T/A Calvary Health Care Sydney; Calvary Mater Newcastle
(AG2017/5809)
Named NSW (Non-Declared) Affiliated Health Organisations' Nurses Agreement 2017
| Health and welfare services | |
| DEPUTY PRESIDENT SAMS | SYDNEY, 21 MAY 2018 |
Application for approval of the Named NSW (Non-Declared) Affiliated Health Organisations' Nurses Agreement 2017.
This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed on 27 November 2017, by St Vincent’s Hospital Sydney Limited (the ‘applicant’), on behalf of five named employers, which seeks the approval of the Fair Work Commission (the ‘Commission’) of a multi-enterprise agreement to be known as the Named NSW (Non-Declared) Affiliated Health Organisations’ Nurses Agreement 2017 (the ‘Agreement’). The Agreement was negotiated with the NSW Nurses and Midwives Association (the ‘Union’) and is to cover approximately 2487 employees who are engaged at the above mentioned facilities, in nursing based roles. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.
The employees were last notified of their representational rights on 15 May 2017, and voting for the Agreement’s approval took place over a one week period, from 6 November 2017 to 13 November 2017. The time limits under s 181(2) of the Act are thereby satisfied. The Agreement was approved by a valid majority of employees, in which 646 of the 705 employees balloted, voted in a secret ballot to approve the Agreement. The application for approval of the Agreement was lodged on 27 November 2017, thereby satisfying s 185(3) of the Act.
Each of the named employers filed an Employers’ Declaration in support of the application (Form 17). The Nurses Award [MA000034] was identified as the relevant reference instrument for the purposes of the Better Off Overall Test (‘BOOT’). References were also made to the Public System Nurses and Midwives (State) Award (AN120719). It was said that while the Agreement provides for a number of less beneficial terms and conditions, a number of other conditions are significantly in excess of, or are more beneficial, than the terms of the relevant reference instrument. In particular, the Agreement provides for higher rates of pay, additional allowances and leave entitlements when compared to the Modern Award. I note that the Agreement provides for a percentage adjustment to rates of pay calculated by reference to the State Award, as amended from time to time. I am satisfied that the Agreement passes the BOOT. In addition, the Agreement provides for the mandatory flexibility and consultation terms at clauses 63 and 51 respectively, and a disputes resolution procedure at clause 52 provides for consent mediation, conciliation and arbitration by the Commission.
After the application was remitted to me on 13 April 2018, I convened a conference of the parties on 27 April 2018. Ms I Paginin, (Solicitor) (with permission) appeared for the applicant. Ms P Kelly and Ms K Wild appeared for the Union. Ms Paginin submitted that all of the legislative requirements for approval of the Agreement had been satisfied. However, there remained a dispute as to the wording of an undertaking going to annual leave for shift workers. The parties exchanged draft wording and discussions continued in a second conference before me on 2 May 2018. On that occasion, Mr N Stevens (Solicitor) appeared with Ms Paginin. In an email to my Chambers on 9 May 2018, Ms Paginin confirmed that the applicant and the Union had reached agreement with respect to all of the undertakings. I am satisfied that the undertakings meet the requirements of s 190(3) of the Act. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings are attached to the Agreement and marked as ‘Annexure A’.
The Union supported the approval of the Agreement and had filed a Declaration in relation to the application (Form 18) supporting the approval and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.
Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation, the Agreement itself and the undertakings, I am satisfied that all of the requirements of the Act, in particular ss, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a multi-enterprise agreement known as the Named NSW (Non-Declared) Affiliated Health Organisations’ Nurses Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 21 May 2018 and have a nominal expiry date of 30 June 2020.
DEPUTY PRESIDENT
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