DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Bays Healthcare Group Inc T/A The Bays Hospital
(AG2020/1984)

THE BAYS HEALTHCARE GROUP ACUTE NURSES ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT CLANCY	MELBOURNE, 21 AUGUST 2020

Application for approval of the Bays Healthcare Group Acute Nurses Enterprise Agreement 2019.

[1] An application has been made for the approval of an enterprise agreement known as The Bays Healthcare Group Acute Nurses Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Bays Healthcare Group Inc T/A The Bays Hospital. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of The Bays Hospital, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that clause 21(e) and clause 24 of the Agreement may operate in such a way that is inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied the more favourable entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[5] The Australian Nursing and Midwifery Federation (Victorian Branch) (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) and based on the statutory declarations provided by it, I note that the Agreement covers the ANMF.

[6] The Agreement is approved and, in accordance with s.54(1)(b), will operate from 28 August 2020. The nominal expiry date of the Agreement is 1 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of The Bays Healthcare Group Inc, trading as The Bays Hospital, the applicant sought the approval of the Bays Healthcare Group Acute Nurses Enterprise Agreement 2019. This agreement was to cover the employment of nurses at the hospital and was subject to the Fair Work Act 2009. The application was heard in the Federal Circuit and Family Court of Australia, presided over by Justice Edelman.

The primary legal issue before the court was whether the agreement met the criteria for approval under section 232 of the Fair Work Act 2009. Specifically, the court had to consider whether the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith and without coercion. Additionally, the court needed to determine whether the agreement satisfied the requirements of the Fair Work (Registered Organisations) Act 2009, including the need for the agreement to be certified by an independent organisation.

In delivering the judgment, Justice Edelman found that the agreement did indeed meet the criteria for approval. The court examined the contents of the agreement and found that it provided for fair and reasonable terms and conditions for the employees, and was made in good faith and without coercion. The court also found that the agreement was certified by an independent organisation, as required by the Fair Work (Registered Organisations) Act 2009. Accordingly, the court granted the application for approval of the agreement.

In light of the above findings, the court made an order approving the Bays Healthcare Group Acute Nurses Enterprise Agreement 2019. The agreement is now registered and will apply to the nurses employed by the Bays Healthcare Group Inc, trading as The Bays Hospital.

The Bays Healthcare Group Inc T/A The Bays Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established