Stonnington Day Surgery Pty Ltd

[2025] FWCA 632

[2025] FWCA 632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Stonnington Day Surgery Pty Ltd

(AG2024/5290)

STONNINGTON DAY SURGERY NURSES ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER CONNOLLY	MELBOURNE, 18 FEBRUARY 2025

Application for approval of the Stonnington Day Surgery Nurses Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Stonnington Day Surgery Nurses Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) Stonnington Day Surgery Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 20 January 2025.

1. The notification time for the Agreement under s.173(2) was 30 September 2024 and the Agreement was made on 11 December 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 30 January 2025, the Employer was invited to address aspects of the Agreement.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the use of the pre-6 June reforms version of the NERR had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There is one National Employment Standards (NES) issue that requires comment:
   
   

   ·  Post-reform casual conversion provisions: Clause 16(f) of the Agreement contains the pre-26 August conversion scheme, however, does not make note of new employee choice conversion provisions which will be available to eligible employees from February 2025.

1. Clause 6 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The Australian Nursing and Midwifery Federation (ANMF), 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 September 2027.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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