Australian Nursing and Midwifery Federation v Monash Health [2024] FCA 534

Federal Court of Australia

Australian Nursing and Midwifery Federation v Monash Health [2024] FCA 534 File number(s): VID 16 of 2023

Judgment of: WHEELAHAN J

Date of judgment: 24 May 2024

Catchwords: INDUSTRIAL LAW — enterprise agreement – long service leave – construction of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 – whether two registered nurses employed by the respondent as Award-entitled Employees under the Agreement were entitled to long service leave – where Award-entitled Employees were entitled to paid long service leave upon accruing a sufficient period of Continuous Service – where the employment of the two nurses had switched between casual, part-time and full-time employment over the course of their relationship with the respondent – where the respondent denied that the nurses were entitled to long service leave on the basis that they had not accrued sufficient Continuous Service – where the respondent contended that each nurse's Continuous Service had been broken by two periods during which the nurses had been retained in the system as casual employees but had not performed work – whether the nurses' absences amounted to Continuous Casual Employment within the terms of the Agreement, and thus Continuous Service – where the applicant submitted that the nurses' absences constituted Continuous Casual Employment because the nurses had been employed by the respondent on a regular and systematic basis and had a reasonable expectation of being re-engaged, within the scope of subclause 70.5(a)(ii)B of the Agreement – the gaps between the nurses' engagements did not fall within subclause 70.5(a)(ii)B because they were not periods of regular and systematic employment, and the nurses did not have the requisite expectation of being re-engaged during the gaps – where the applicant submitted that the nurses' absences constituted Continuous Casual Employment because the absences were gaps due to the terms of engagement of the nurses, within the scope of subclause 70.5(a)(ii)C – subclause 70.5(a)(ii)C deems a gap between engagements to be Continuous Casual Employment where the gap is caused by the terms of engagement of a casual employee – the impugned absences were not caused by the terms of engagement of the two nurses – the nurses had not accrued sufficient Continuous Service to be entitled to long service leave under the Agreement – application dismissed.