Sydney Surgery Centre Pty Ltd T/A Chatswood Private Hospital

[2018] FWCA 4422

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Sydney Surgery Centre Pty Ltd T/A Chatswood Private Hospital

(AG2018/1569)

Sydney Surgery Centre Pty Ltd - NSWNMA & ANMF (NSW Branch) Enterprise Agreement 2018 - 2020

Health and welfare services
COMMISSIONER MCKENNA	SYDNEY, 27 JULY 2018

Application for approval of the Sydney Surgery Centre Pty Ltd - NSWNMA & ANMF (NSW Branch) Enterprise Agreement 2018 - 2020.

An application has been made for the approval of an enterprise agreement known as the Sydney Surgery Centre Pty Ltd - NSWNMA & ANMF (NSW Branch) Enterprise Agreement 2018 - 2020 (“the Agreement”). The application was made by Sydney Surgery Centre Pty Ltd T/A Chatswood Private Hospital (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 of the Act relevant to this application for approval have been met with the provision of written undertakings addressing miscellaneous matters. I am also satisfied that any issue in relation to parental leave will be addressed by the operation of clause 7 of the Agreement as it concerns the National Employment Standards. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement.

Separately, to the extent that clause 34.1(10) may purport to allow cashing-out long service leave under the Long Service Leave Act (1955) (NSW) (in that it refers to taking long service leave on double pay), that statute’s prohibition on cashing-out leave will continue to apply: Armacell Australia Pty Ltd [2010] FWAFB 9985; St Marys Rugby League Club Ltd [2010] FWA 9314.

The Australian Nursing and Midwifery Federation – New South Wales Branch has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this approval decision. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Sydney Surgery Centre Pty Ltd trading as Chatswood Private Hospital made an application for approval of its enterprise agreement with the NSW Nurses and Midwives' Association and the Australian Nursing and Midwifery Federation (NSW Branch). The application was brought forward to consider the fairness of the agreement in relation to the workers' entitlements and conditions. The dispute centred on whether the agreement contained provisions that were consistent with the requirements of the Fair Work Act 2009.

The legal issues before the Commission involved assessing whether the agreement met the 'better off overall test', ensuring that it did not undermine the safety net of minimum entitlements and that it was fairly negotiated. The Commission also needed to consider whether the agreement contained provisions that were procedurally fair and did not unfairly discriminate against any class of employees.

The Fair Work Commission determined that the agreement was fair and met the 'better off overall test'. It found that the agreement provided for appropriate conditions and entitlements, and did not undermine the minimum standards set by the Act. The Commission also concluded that the agreement was fairly negotiated and did not contain provisions that unfairly discriminated against any group of employees. The agreement was approved on the basis that it provided a fair and reasonable set of terms and conditions for the employees covered by it.

In light of the findings, the Commission approved the enterprise agreement, allowing it to come into effect as per the specified terms. This decision provided certainty for both the employer and the employees regarding their rights and obligations under the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established