Stirling Hospital Inc.

[2021] FWCA 4425

[2021] FWCA 4425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Stirling Hospital Inc.
(AG2021/5870)

STIRLING HOSPITAL INC NURSING EMPLOYEES ANMF ENTERPRISE AGREEMENT 2020

Health and welfare services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 23 JULY 2021

Application for approval of the Stirling Hospital Inc. Nursing Employees ANMF Enterprise Agreement 2020.

[1] Stirling Hospital Inc. has applied for approval of a single enterprise agreement known as the Stirling Hospital Inc. Nursing Employees ANMF Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission inquired about whether the pre-approval steps were met. Further information was provided.

[3] In relation to whether the Agreement passes the “better off overall” test, some concerns were raised by the Commission. And, although it supported approval of the Agreement, some matters of disagreement with the employer’s declaration relevant to the “better off overall” assessment were identified by the Australian Nursing and Midwifery Federation South Australian Branch in its role as bargaining representative. 1 Further information was provided by the employer and the bargaining representative and a written undertaking was given in accordance with s.190 of the Act (attached at Annexure A) (Undertaking), which the bargaining representatives did not oppose.

[4] On an analysis of the materials before the Commission, it is apparent that the Agreement includes more beneficial terms, including higher ordinary wage rates for each classification of employee and prospective employee to be covered. Less beneficial (financial and non-financial) terms have also been identified. On an overall assessment of whether employees to be covered would be better off overall under the Agreement, including with regard to the identified more beneficial and the identified less beneficial terms in the Agreement and the Undertakings and all of the submissions and materials before the Commission, I am satisfied that the Agreement passes the better off overall test.

[5] I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement. Having regard to the Undertaking, I am also satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] On the basis of the material contained in the application, further information provided and the Undertaking, 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.

[7] The Australian Nursing and Midwifery Federation South Australian Branch, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

The Agreement was approved on 23 July 2021 and, in accordance with s.54, will operate from 30 July 2021. The nominal expiry date of the Agreement is 31 December 2023.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE512415  PR732049>

 1   Form F18 filed 29 June 2021.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Annexure A