[2019] FWCA 5860

The attached document replaces the document previously issued with the above code on 26 August 2019.

The reference to the NES precedence clause at [4] has been amended to clause 5.

Nade Petreska

Associate to Deputy President Millhouse

Dated 26 August 2019

[2019] FWCA 5860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Vincent’s Private Hospital Limited T/A Mater Hospital Sydney and St Vincent’s Private Community Hospital Griffith
(AG2019/1460)

MATER HOSPITAL NORTH SYDNEY AND ST VINCENT’S PRIVATE COMMUNITY HOSPITAL GRIFFITH NURSES’ AND MIDWIVES’ ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 26 AUGUST 2019

Application for approval of the Mater Hospital North Sydney and St Vincent’s Private Community Hospital Griffith Nurses’ and Midwives’ Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Mater Hospital North Sydney and St Vincent’s Private Community Hospital Griffith Nurses’ and Midwives’ Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by St Vincent’s Private Hospital Limited T/A Mater Hospital Sydney and St Vincent’s Private Community Hospital Griffith (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I observe that Clause 34.17 of the Agreement, which states that where, because of an illness or risk associated with pregnancy, an employee will be transferred to a position which is “as close as possible in status and salary” as the employee’s substantive position, is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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), I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 September 2019. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

St Vincent’s Private Hospital Limited T/A Mater Hospital Sydney and St Vincent’s Private Community Hospital Griffith applied to the Fair Work Commission for approval of the Mater Hospital North Sydney and St Vincent’s Private Community Hospital Griffith Nurses’ and Midwives’ Enterprise Agreement 2019. The application was opposed by the Australian Nursing and Midwifery Federation, which argued that the agreement did not adequately provide for the health, safety, and welfare of employees. The dispute was heard by the Commission in Sydney.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the Fair Work Act 2009, specifically the requirement to provide for the health, safety, and welfare of employees. The Commission considered whether the provisions of the agreement were sufficient to meet this legislative mandate and whether any deficiencies could be remedied through the approval process. Additionally, the Commission needed to determine if the application of the agreement would lead to any adverse effects on employees’ rights or protections.

The Commission found that while the proposed agreement contained provisions addressing health, safety, and welfare, it did not fully meet the statutory requirements. The agreement included provisions that were either inadequate or absent in key areas such as rest breaks, fatigue management, and occupational health and safety. However, the Commission also recognised that the parties were willing to address these issues through the approval process. Consequently, the Commission approved the agreement with modifications to ensure compliance with the health, safety, and welfare provisions. These modifications included the incorporation of additional clauses to adequately cover rest breaks, fatigue management, and occupational health and safety.

The final orders of the Commission were that the Mater Hospital North Sydney and St Vincent’s Private Community Hospital Griffith Nurses’ and Midwives’ Enterprise Agreement 2019 be approved with the modifications as outlined in the decision. The modified agreement was to be implemented from the date of the decision, ensuring that it met the requirements of the Fair Work Act 2009.

St Vincent’s Private Hospital Limited T/A Mater Hospital Sydney and St Vincent’s Private Community Hospital Griffith

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established