The Karuna Hospice Service Ltd T/A Karuna Hospice Services
[2024] FWCA 1054
•25 MARCH 2024
| [2024] FWCA 1054 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
The Karuna Hospice Service Ltd T/A Karuna Hospice Services
(AG2024/622)
KARUNA HOSPICE SERVICES - NURSES ENTERPRISE AGREEMENT 2023
| Health and welfare services | |
| DEPUTY PRESIDENT DOBSON | BRISBANE, 25 MARCH 2024 |
Application for approval of the Karuna Hospice Services Nurses Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Karuna Hospice Services – Nurses Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Karuna Hospice Service Ltd (the Applicant). The Agreement is a single enterprise agreement.
The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]
The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.
Pursuant to s.190(3) of the Act, I accept the undertakings.
Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The Agreement does not contain a model consultation term compliant with the Act. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Noting the undertakings provided, and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES, particularly noted at clauses 16.4 (deductions on termination) and clause 37.3 (taking of annual leave).
The Australian Nursing and Midwifery Federation/Queensland Nurses and Midwives Union (QNMU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the QNMU.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 28 May 2026.
DEPUTY PRESIDENT
[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].
[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.
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