St Vincent’s Private Hospitals Ltd T/A St Vincent’s Private Community Hospital Griffith / Mater Hospital Sydney

[2023] FWCA 1657

[2023] FWCA 1657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

St Vincent’s Private Hospitals Ltd T/A St Vincent’s Private Community Hospital Griffith / Mater Hospital Sydney

(AG2023/1540)

ST VINCENT’S HEALTH AUSTRALIA (NSW PRIVATE HOSPITALS) SUPPORT SERVICES ENTERPRISE AGREEMENT 2022

Health and welfare services
COMMISSIONER YILMAZ	MELBOURNE, 9 JUNE 2023

Application for approval of the St Vincent’s Health Australia (NSW Private Hospitals) Support Services Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the St Vincent’s Health Australia (NSW Private Hospitals) Support Services Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by St Vincent’s Private Hospitals Ltd T/A St Vincent’s Private Community Hospital Griffith / Mater Hospital Sydney (the employer). The Agreement is a single enterprise agreement.

1. I note that the Notice of Employee Representational Rights (NERR) provided to the employees listed the employer’s name as “St Vincent’s Health Australia”. However, other documents submitted refer to the employer as “St Vincent’s Private Hospitals Ltd”. This discrepancy was raised to ascertain whether all relevant employees were aware whether they would be covered by the Agreement.

1. On 7 June 2023, my chambers received submissions from the employer advising that they believe this issue is to be considered a minor procedural error and did not affect employee awareness of the employer in context of the business structure. They further advise that in previous decisions the incorrect naming of the employer in a NERR has been held to not invalidate a NERR issued by an employer.[1] They further submit that the NERR was issued to all relevant employees.

1. In the circumstances, I am satisfied that this discrepancy may be considered a minor procedural error for the purposes of s.188(5) of the Act and I am satisfied that the error may be disregarded as employees were not likely to have been disadvantaged.

1. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Health Services Union 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.

1. The Agreement is approved and in accordance with s.54, will operate from 16 June 2023. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Annexure A

[1] Application by Falcon Mining Pty Ltd [2016] FWC 5315 and Application by Work Relations [2014] FWCA 5077

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