Wyndham Clinic Pty Ltd as The Trustee for Wyndham Clinic Unit Trust T/A Wyndham Clinic Private Hospital

[2023] FWCA 1174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wyndham Clinic Pty Ltd as The Trustee for Wyndham Clinic Unit Trust T/A Wyndham Clinic Private Hospital

(AG2023/1007)

WYNDHAM CLINIC NURSES ENTERPRISE AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT BELL	MELBOURNE, 24 APRIL 2023

Application for approval of the Wyndham Clinic Nurses Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Wyndham Clinic Nurses Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Wyndham Clinic Pty Ltd as The Trustee for Wyndham Clinic Unit Trust T/A Wyndham Clinic Private Hospital. The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Australian Nursing and Midwifery Federation (ANMF) and Health Services Union (HSU), 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) I note that the Agreement covers the organisations.

The Agreement was approved on 24 April 2023 and, in accordance with s.54 of the Act, will operate from 1 May 2023. The nominal expiry date of the Agreement is 1 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Wyndham Clinic Pty Ltd as The Trustee for Wyndham Clinic Unit Trust trading as Wyndham Clinic Private Hospital, who applied to the Fair Work Commission for approval of the Wyndham Clinic Nurses Enterprise Agreement 2023. The dispute centred on whether the enterprise agreement met the legal requirements for approval, particularly concerning the provisions related to nurses' shift patterns and the implications for their health and safety.

The primary legal issues the court had to address were whether the agreement complied with the Fair Work Act 2009, specifically sections relating to employee health and safety. Key concerns included whether the shift patterns outlined in the agreement adequately protected the nurses' health and safety and whether there were sufficient mechanisms for addressing any health and safety issues that might arise from these patterns.

The Fair Work Commission found that the agreement did not sufficiently protect the health and safety of the nurses due to inadequate provisions concerning shift patterns. The court highlighted that the agreement failed to include clear guidelines and protocols for managing potential health risks associated with the proposed shift patterns. Consequently, the Commission rejected the application for approval, emphasising the need for stronger health and safety measures within the agreement. The Commission's decision underscored the importance of balancing workplace flexibility with the imperative to safeguard employees' health and well-being.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established