DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sydney Surgery Centre Pty Ltd T/A Ophthalmic Surgery Centre (North Shore)
(AG2014/10738)

SYDNEY SURGERY CENTRE PTY LTD - NSWNMA & ANMF (NSW BRANCH) ENTERPRISE AGREEMENT 2015 - 2017.

Health and welfare services
DEPUTY PRESIDENT BOOTH	SYDNEY, 17 DECEMBER 2014

Application for approval of the Sydney Surgery Centre Pty Ltd - NSWNMA & ANMF (NSW Branch) Enterprise Agreement 2015 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Sydney Surgery Centre Pty Ltd - NSWNMA & ANMF (NSW Branch) Enterprise Agreement 2015 - 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sydney Surgery Centre Pty Ltd. The agreement is a single-enterprise agreement.

[2] The New South Wales Branch of the Australian Nursing and Midwifery Federation and the New South Wales Nurses and Midwives’ Association, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 December 2014. The nominal expiry date of the Agreement is 31 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Sydney Surgery Centre Pty Ltd, trading as Ophthalmic Surgery Centre (North Shore), sought approval of a proposed enterprise agreement in accordance with the Fair Work Act 2009. The respondent, the NSW Nurses and Midwives' Association (NSWNMA) and the Australian Nursing and Midwifery Federation (NSW Branch), objected to the approval of the agreement on the grounds that it failed to meet the ‘better off overall test’ required by section 230 of the Act. The case was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the statutory requirements of the Fair Work Act, particularly whether it satisfied the ‘better off overall test’. This test requires that the agreement be no worse than the applicable awards and that employees are not worse off overall compared to their previous conditions of employment. The respondents argued that the proposed agreement did not meet this test as it included provisions that were less favourable to the employees than their existing conditions.

The Commission considered the submissions and evidence from both parties and found that the proposed agreement did indeed meet the ‘better off overall test’. The Commission was satisfied that the agreement provided employees with better conditions in some areas, such as shift loading, and that while there were some reductions in other areas, the overall package was better than the employees' previous conditions. The Commission approved the application, finding that the agreement was in the interests of fairness and efficiency.

The Fair Work Commission approved the application for the enterprise agreement. The Commission found that the proposed agreement was fair and efficient, and met the requirements of the Fair Work Act, including the ‘better off overall test’. The decision was made on the basis that the overall package of conditions provided by the agreement was better than the employees' previous conditions, despite some areas where conditions were less favourable.

Sydney Surgery Centre Pty Ltd T/A Ophthalmic Surgery Centre (North Shore)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established