The Hobart Clinic Association T/A The Hobart Clinic

[2020] FWCA 2898

[2020] FWCA 2898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Hobart Clinic Association T/A The Hobart Clinic
(AG2020/1214)

THE HOBART CLINIC NURSES ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT CLANCY	MELBOURNE, 2 JUNE 2020

Application for approval of The Hobart Clinic Nurses Enterprise Agreement 2019.

[1] An application has been made for the approval of an enterprise agreement known as The Hobart Clinic 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 Hobart Clinic Association T/A The Hobart Clinic. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of The Hobart Clinic, 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 note that Clause 12(c)(ii) provides that where the employee fails to give the required notice of termination, the employer may withhold from any monies due to the employee an amount not exceeding the amount the employee would have been paid under the Agreement in respect of the period of notice required by Clause 12, less any period of notice actually given by the employee. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act if applied in relation to “monies” due that relate to untaken paid annual leave, and pursuant to s.326 of the Act, is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[4] I also observe that certain provisions within Clauses 13 and 27 of the Agreement (clause 13(a)(ii) and clause 27(c)(v)) may 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 Hobart Clinic has provided written undertakings. A copy of the undertakings is attached in Annexure A. They were not the subject of objection from either the Health Services Union, Tasmania Branch (HACSU) or the Australian Nursing and Midwifery Federation (Tas Branch) (the ANMF). 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. The undertakings are taken to be terms of the Agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, together with the matters discussed at the Telephone Mention on 26 May 2020, 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.

[7] HACSU and the ANMF, 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) and based on the statutory declarations provided by them, I note that the Agreement covers both HACSU and the ANMF.

[8] The Agreement is approved and, in accordance with s.54(1)(b), will operate from 9 June 2020. The nominal expiry date of the Agreement is 30 September 2023.

DEPUTY PRESIDENT

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Annexure A