DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Stonnington Day Surgery Pty Ltd
(AG2021/5611)

STONNINGTON DAY SURGERY NURSES ENTERPRISE AGREEMENT 2021

Health and welfare services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 29 JUNE 2021

Application for approval of the Stonnington Day Surgery Nurses Enterprise Agreement 2021.

[1] Stonnington Day Surgery Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Stonnington Day Surgery Nurses Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

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

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, 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 23(d) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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 seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 29 June 2021 and, in accordance with s 54, will operate from 6 July 2021. The nominal expiry date of the Agreement is 1 January 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Stonnington Day Surgery Pty Ltd applied to the Fair Work Commission for approval of the Stonnington Day Surgery Nurses Enterprise Agreement 2021. The respondents to the application were the Australian Nurses and Midwifery Federation. The application was heard by Commissioner McGrath. The primary issue before the Commission was whether the agreement provided for a fair and reasonable safety net for the employees who would be covered by it. The Commission considered the evidence presented on the nature of the work performed by the employees, the financial position of the employer, and the terms and conditions of the agreement. The Commission concluded that the agreement provided for a fair and reasonable safety net for the employees, taking into account all relevant factors.

The Commission noted that the agreement provided for a number of protections for employees, including minimum rates of pay, penalty rates for certain types of work, and provisions for leave and other entitlements. The Commission also considered the evidence presented on the financial position of the employer, and found that the employer was able to afford the terms and conditions of the agreement. The Commission further noted that the agreement was the result of good faith bargaining between the parties, and that there was no evidence of any coercion or undue influence. The Commission therefore approved the agreement, subject to certain modifications to ensure that it complied with the relevant legislative provisions. The modifications related to the calculation of penalty rates and the provision of notice of termination of employment. The employer and the union were given the opportunity to make submissions on the modifications, and the Commission made its final orders accordingly.

Stonnington Day Surgery Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established