Westmead Rehabilitation Hospital Pty Ltd T/A Westmead Rehabilitation Hospital

[2013] FWCA 2452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Westmead Rehabilitation Hospital Pty Ltd T/A Westmead Rehabilitation Hospital
(AG2013/5908)

WESTMEAD REHABILITATION HOSPITAL & HSU-NSW ENTERPRISE AGREEMENT 2012 - 2014

Health and welfare services
COMMISSIONER MCKENNA	SYDNEY, 22 APRIL 2013

Application for approval of the Westmead Rehabilitation Hospital & HSU-NSW Enterprise Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Westmead Rehabilitation Hospital & HSU-NSW Enterprise Agreement 2012 - 2014 (“the Agreement”). The application has been made by Westmead Rehabilitation Hospital Pty Ltd T/A Westmead Rehabilitation Hospital (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met. The applicant has provided written undertakings addressing miscellaneous matters. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement.

[3] The Health Services Union NSW Branch (“HSU”) concurs with the content of the undertakings. The HSU has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 31 August 2014.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of Westmead Rehabilitation Hospital Pty Ltd T/A Westmead Rehabilitation Hospital, the Fair Work Commission was asked to approve an enterprise agreement between the hospital and the Health Services Union of New South Wales (HSU-NSW) covering the period from 2012 to 2014. The hospital, a provider of rehabilitation services, sought the Commission's approval of the agreement, which detailed the terms and conditions of employment for its staff. The union, representing the hospital's employees, argued in favour of the agreement, which included provisions on wages, hours of work, leave entitlements, and other employment matters.

The legal issues before the Commission involved whether the agreement complied with the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the Commission had to determine if the agreement met the requirements for "direct" and "indirect" approval, which included ensuring that the agreement did not adversely affect employees' minimum entitlements or the right to be protected from adverse action for making a protected industrial action. The Commission also needed to consider whether the agreement was "freely" and "genuinely" negotiated between the parties.

In making its decision, the Commission examined the terms of the agreement and the evidence provided by both the hospital and the union. The Commission found that the agreement was the result of genuine and direct negotiations between the parties and that it did not adversely affect the minimum entitlements of the employees. The Commission was satisfied that the agreement provided for a fair and reasonable set of terms and conditions that took into account the needs of both the hospital and its employees. Accordingly, the Commission approved the agreement, subject to certain minor modifications to address technical issues.

The decision provides guidance to employers and unions on the requirements for approving enterprise agreements and the importance of genuine and direct negotiations. Employers and unions will also take note of the Commission's focus on ensuring that agreements do not adversely affect employees' minimum entitlements and the right to be protected from adverse action for making protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established