DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thompson Health Care Pty Ltd
(AG2021/8469)

THOMPSON HEALTH CARE, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2021

Aged care industry
COMMISSIONER MATHESON	SYDNEY, 8 DECEMBER 2021

Application for approval of the Thompson Health Care, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Thompson Health Care, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2021 (Agreement). The application was made by Thompson Health Care Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

[4] The Australian Nursing and Midwifery Federation and Health Services Union, 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 the organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 December 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Thompson Health Care Pty Ltd and several unions sought approval of their enterprise agreement under the Fair Work Act 2009. The unions involved were the NSW Nurses and Midwives' Association, the Australian Nursing and Midwifery Federation New South Wales Branch, and the Health Services Union New South Wales Branch. The primary dispute centred around the terms and conditions of employment for nurses and other healthcare workers within Thompson Health Care, with a focus on pay rates, entitlements, and other working conditions. The application was heard by the Fair Work Commission.

The central legal issues before the Commission involved whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act. Specifically, the Commission had to determine if the agreement contained all the mandated minimum terms, was free from prohibited content, and was appropriately certified. The unions argued that the agreement fairly reflected the needs of the workforce, while Thompson Health Care contended that certain provisions were unworkable and not in the best interests of the business.

In reaching its decision, the Fair Work Commission carefully examined the provisions of the agreement, considering both the statutory requirements and the broader context of industrial relations in the healthcare sector. The Commission found that the agreement generally adhered to the mandated minimum terms and was free from prohibited content. The Commission also accepted the evidence provided by the unions that the agreement had been fairly and properly certified, with the necessary majority of employees supporting the agreement. The Commission concluded that the agreement was in the best interests of the employees and the business, and thus approved the application for its registration.

The Fair Work Commission ordered the registration of the Thompson Health Care, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2021, effective from the date of the decision. This approval means that the terms and conditions set out in the agreement will govern the employment relationship between Thompson Health Care and its employees represented by the unions.

Thompson Health Care Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established