Wollongong Day Surgery Pty Ltd T/A Wollongong Day Surgery

[2023] FWCA 3129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wollongong Day Surgery Pty Ltd T/A Wollongong Day Surgery

(AG2023/2941)

HEALTHE CARE (NSW DAY PROCEDURE CENTRES) AND THE NSWNMA/ANMF NSW BRANCH ENTERPRISE AGREEMENT 2022

Health and welfare services
DEPUTY PRESIDENT BOYCE	SYDNEY, 27 SEPTEMBER 2023

Application for approval of the Healthe Care (NSW Day Procedure Centres) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Healthe Care (NSW Day Procedure Centres) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Wollongong Day Surgery Pty Ltd T/A Wollongong Day Surgery (Employer). The Agreement is a single enterprise agreement.

Coverage of employee organisation

The Australian Nursing and Midwifery Federation New South Wales Branch, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

I am equally satisfied the more beneficial entitlements of the NES (Part 2-2 of the Act) will prevail where there is an inconsistency between the Agreement and the NES. In the regard, and specifically, I accept the Applicant’s submission that clause 38(vii) of the Agreement is not to be construed (and will not be applied) so as to permit the deduction of any NES entitlements where an employee fails to provide requisite notice of their termination (resignation) in writing.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 October 2023. The nominal expiry date of the Agreement is 30 September 2024.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved Wollongong Day Surgery Pty Ltd trading as Wollongong Day Surgery and the Healthe Care (NSW Day Procedure Centres) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022. The dispute centred on the application for approval of the Enterprise Agreement, which was intended to govern the terms and conditions of employment for employees at the Wollongong Day Surgery. The matter was heard in the Fair Work Commission, which is the body responsible for resolving workplace disputes and approving enterprise agreements under the Fair Work Act 2009.

The primary legal issue the court had to address was whether the Enterprise Agreement complied with the provisions of the Fair Work Act and the Fair Work Regulations 2009. This involved assessing whether the agreement met the requirements for genuine agreement, as well as ensuring that it did not contain terms that were unfair or discriminatory. The court also had to consider whether the agreement provided appropriate mechanisms for the resolution of workplace disputes and whether it contained appropriate dispute resolution processes.

In delivering its decision, the Fair Work Commission examined the process by which the Enterprise Agreement was negotiated and concluded that it had been genuinely agreed to by the parties. The Commission found that the agreement contained provisions that were consistent with the principles of the Fair Work Act and did not contain any terms that were unfair or discriminatory. The Commission also noted that the agreement provided for appropriate dispute resolution mechanisms, including the establishment of a workplace committee to assist in resolving disputes between employees and the employer. Based on these findings, the Commission approved the Enterprise Agreement, confirming its compliance with the relevant legislative requirements.

The Fair Work Commission's decision resulted in the approval of the Healthe Care (NSW Day Procedure Centres) and the NSWNMA/ANMF NSW Branch Enterprise Agreement 2022. The court found that the agreement met the necessary criteria for genuine agreement and did not contain any unfair or discriminatory terms. The decision ensures that the terms and conditions of employment for employees at Wollongong Day Surgery are governed by an approved Enterprise Agreement, providing a framework for resolving workplace disputes and promoting fair and equitable employment practices.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established