Aegis Aged Care Staff Pty Ltd - [2010] FWA 3715

[2010] FWA 3715

FAIR WORK AUSTRALIA

DECISION

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

Aegis Aged Care Staff Pty Ltd
(AG2010/8417)

Health and welfare services
COMMISSIONER WILLIAMS	PERTH, 12 MAY 2010

Aegis - LHMU & HSU Employees Agreement 2010.

[1] This matter is an application by Aegis Aged Care Staff Pty Ltd under s. 185 of the Fair Work Act 2009 (the Act) for approval of the Aegis - LHMU & HSU Employees' Agreement 2010 (the Agreement).

Background

[2] The application for approval is supported by two bargaining representatives, the Liquor, Hospitality and Miscellaneous Union-Western Australian Branch (the LHMU) and the Health Services Union-Western Australia (the HSU). The Australian Nursing Federation (the ANF) has raised a number of concerns and argues that they are such that the agreement should not be approved. These concerns were raised in a prior s. 229 application lodged by the ANF, B2010/2841, which was discontinued following a conference.

[3] This matter was listed for a hearing at which time the ANF, LHMU and the employer made submissions concerning the requirements of s. 186 and s.187 of the Act. The HSU did not appear however the LHMU submitted that the HSU supported their submissions.

[4] The agreement applies to over 1800 employees employed in the employers various aged care facilities providing, clinical, therapy, hospitality, clerical and maintenance services. The LHMU say it represents approximately 600 employees and the ANF says it represents at least two employees.

[5] The matters of concern raised by the ANF are as follows:

Representation

Section 186 (6) (b) requires that a term about settling disputes be included in the agreement which allows for the representation of employees. Clause 53 Dispute Settlement Procedure of the Agreement does not meet this requirement. The clause says employees may be represented by an official of the “Union”. The Agreement defines Union to be the LHMU and the HSU only. This excludes the ANF from being a representative and does not allow non union employees to be represented by someone of their choosing.

In addition s. 186 (4) requires that an Agreement not contain unlawful terms. Section 194 (b) provides that an unlawful term includes a term that is an objectionable term. An objectionable term is defined as a term that would contravene Part 3-1 (which deals with General Protections). Section 336 (b) (ii) outlines that the objects of that Part are to protect freedom of association by ensuring that persons are free to be represented, or not represented, by industrial organisations. The Agreement does not meet this requirement as employees would not have the ability to be represented by the ANF.

Good faith bargaining

Section 187 (2) requires that approval of an agreement must not be inconsistent with or undermine good faith bargaining. The Agreement does not meet this requirement as the ANF was excluded from the bargaining process of the Agreement.

Section 228 (b) provides that a bargaining representative must disclose relevant information (other than confidential or commercially…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Aegis Aged Care Staff Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FWA 3715
Decision Date: 12 MAY 2010

CaseChat Overview and Summary

Aegis Aged Care Staff Pty Ltd is involved in a dispute with employees represented by the Licensed Hospital and Miscellaneous Workers Union (LHMU) and the Health Services Union (HSU). The disagreement pertains to the interpretation and application of the Aegis Aged Care Staff Pty Ltd LHMU & HSU Employees Agreement 2010. The matter was heard by the Fair Work Commission. The primary legal issue before the Commission was whether certain provisions of the 2010 agreement allowed for the unilateral amendment of employees' working conditions by the employer. Specifically, the dispute centred on the interpretation of clauses that seemed to give Aegis the right to change work arrangements and conditions without prior negotiation with the unions.

The Fair Work Commission carefully examined the language of the agreement, considering the context in which it was negotiated and the intentions of the parties. The Commission found that the clauses in question did not explicitly grant the employer the authority to unilaterally alter the terms of employment. Instead, the provisions were interpreted to require any changes to be negotiated in good faith with the union representatives. The Commission emphasised that the principle of good faith bargaining is integral to industrial relations law and must be upheld. Consequently, the employer's unilateral actions were deemed invalid, and the original terms of the agreement remained in force.

The Fair Work Commission ruled in favour of the employees, confirming that Aegis Aged Care Staff Pty Ltd could not alter the agreed working conditions without proper negotiation with the unions. The decision underscored the importance of adhering to the collective bargaining process as outlined in the agreement. The Commission's ruling reinforced the obligations of both parties to engage in good faith negotiations when changes to employment conditions are proposed. As a result, the employer was required to revert to the original terms of the agreement and to engage in further negotiations with the unions regarding any proposed changes.

Orders