Sunshine Coast Day Surgery Pty Ltd

[2023] FWCA 515

[2023] FWCA 515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sunshine Coast Day Surgery Pty Ltd

(AG2022/5630)

Sunshine Coast Day Surgery Nurses Enterprise Agreement 2022

Health and welfare services
COMMISSIONER HUNT	BRISBANE, 17 FEBRUARY 2023

Application for approval of the Sunshine Coast Day Surgery Nurses Enterprise Agreement 2022

1. Sunshine Coast Day Surgery Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Sunshine Coast Day Surgery Nurses Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).  The Agreement is a single-enterprise agreement.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the Australian Nursing and Midwifery Federation (ANMF) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The ANMF raised several concerns in relation to the Agreement and the filed Undertakings, in which the Employer responded to. Following consultation, on 14 February 2023, the ANMF advised the Commission that it no longer presses its objections.

1. 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.  Pursuant to s.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. In correspondence to the parties, I advised my concern in respect of clause 2.3, Flexibility Arrangements.  The clause does not individually and precisely ‘set out’ the terms of the Agreement the effect of which may be varied by an individual flexibility arrangement.  Instead, the clause provides that the Employer and employee may make an Individual Flexibility Arrangement to vary the effect of ‘any’ of the terms of the Agreement, subject to some conditions. 

1. Section 203 of the Act provides the following:

“203    Requirements to be met by a flexibility term

Flexibility term must meet requirements

(1)   A flexibility term in an enterprise agreement must meet the requirements set out in this section.

Requirements relating to content

(2)   The flexibility term must:

(a)   set out the terms of the enterprise agreement the effect of which may be varied by an individual flexibility agreement agreed to under the flexibility term; and

(b)   require the employer to ensure that any individual flexibility agreement agreed to under the flexibility term:

(i)must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and

(ii)must not include a term that would be an unlawful term if the arrangement were an enterprise agreement.

……….”

1. Having heard the submissions of the parties, I am satisfied that the clause provides that any of the terms within the Agreement may be agreed to be varied (subject to the conditions of the clause), and that this satisfies setting out the terms of the Agreement pursuant to s.203(2)(a) of the Act. Given that the clause states that all of the clauses of the Agreement may be varied, I do not consider it is necessary to recite each clause of the Agreement to satisfy the expression ‘set out’. 

1. The effect of the above is that I am satisfied that clause 2.3, Flexibility Arrangements satisfies the mandatory requirements of the Act, and that it is not necessary to replace the provisions with the model flexibility term. 

1. I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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.  The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The 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 the ANMF.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 February 2023.  The nominal expiry date of the Agreement is 24 February 2026.

COMMISSIONER

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Annexure A – Undertakings