s.185 - Enterprise agreement

Application for approval of the Serco AHSC Nurses' Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as Serco AHSC Nurses' Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Serco Australia Pty Limited (Serco). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the parties outlining an issue regarding the workforce. From the F17B Declaration filed in support of this application, it appeared that of the 733 employees who will be covered by the agreement, 285 were casual. Taking into account the decision of the Full Bench in Appeal by Kmart Australia Limited & Ors[1] I was concerned that if employees voted in the ballot who were not eligible to vote the outcome may have been affected. However, Serco confirmed that all of the casual employees who participated in the ballot were rostered to work one or more shifts during the relevant access period and/or subsequent two-day voting period. I am satisfied by this explanation.

Interaction with the National Employment Standards

[3] Clause 2.4 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a greater benefit, in which case the NES provision will apply to the extent of the inconsistency (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

1. Whereas clause 13.1 of the agreement states that employees "acknowledge that some work will need to be performed on" public holidays and Serco "may from time to time require employees to work on a public holiday", the operation of the NES precedence clause will ensure that the provisions of s 114 of the Act will apply in any event. This means, among other things, that an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes, however an employer may request an employee to work on a public holiday if the request is reasonable.
2. Clause 22.10 of the Agreement provides that redundancy pay is not payable in some circumstances, including where Serco finds suitable alternative employment for the employee, which is declined. Section 120 of the Act deals with circumstances in which a variation to redundancy pay can be sought where an employer obtains other acceptable employment for an employee. In particular, an application is required to be made to the Commission for a determination. The operation of clause 2.4 of the Agreement - the NES precedence clause - is therefore likely to mean that despite clause 22.11, the amount of redundancy or severance pay cannot be varied without compliance with s 120 of the Act.

[4] Based on the foregoing I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Australian Nursing and Midwifery Federation (ANMF) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the ANMF.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[1] [2019] FWCFB 7891

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