DECISION

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

Aged Care Deloraine Inc
(AG2020/157)

AGED CARE DELORAINE INC ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT LAKE	BRISBANE, 22 APRIL 2020

Application for approval of the Aged Care Deloraine Inc Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Aged Care Deloraine Inc Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aged Care Deloraine Inc (the Applicant). The Agreement is a single enterprise agreement.

[1] Ms Emily Shepherd, Branch Secretary of the Tasmanian Branch of the Australian Nursing and Midwifery Federation (ANMF), lodged a Form F18 statutory declaration giving notice under s.183 of the Act that the ANMF supported approval of the Agreement and wants the Agreement to cover it.

[2] Mr Tim Jacobson, State Secretary of the Tasmania Branch of the Health Services Union of Australia (HSU), lodged a Form F18 statutory declaration advising it supported approval of the Agreement and giving notice under s.183 of the Act that the HSU wants the Agreement to cover it.

[3] Both Form F18s identified some concerns regarding the Agreement and statements in the Form F17 filed by the Applicant.

[4] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement and as Annexure A to this Decision.

[6] I observe that Clause 4 – Redundancy of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the NES precedence undertaking given by the Applicant, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The ANMF and 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) of the Act I note that the Agreement covers the ANMF and HSU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 April 2020. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A.

Aged Care Deloraine Inc was the subject of an application for the approval of an enterprise agreement by the Fair Work Commission. The applicant, Aged Care Deloraine Inc, sought to have their proposed 2019 Enterprise Agreement ratified. The application was brought in response to negotiations between the employer and the employees represented by the Australian Nursing and Midwifery Federation. The nature of the dispute centred on the terms and conditions of employment for the workers, which the applicant argued were fair and reasonable.

The primary legal issues that the Commission had to address were whether the proposed agreement met the requirements of the Fair Work Act 2009 and whether the agreement was in the best interests of the employees. Specifically, the Commission needed to determine if the agreement complied with the "better off overall test" and if it contained the necessary minimum entitlements as stipulated by the Act. The Commission also had to consider whether the agreement had been made in good faith and whether it provided for the proper regulation of workplace relations.

In delivering its decision, the Fair Work Commission found that the proposed enterprise agreement did meet the statutory requirements and was in the best interests of the employees. The Commission was satisfied that the agreement was both procedurally and substantively fair, and that it contained all the necessary minimum entitlements. Furthermore, the Commission determined that the agreement was made in good faith and provided for the proper regulation of workplace relations. Consequently, the Commission approved the Aged Care Deloraine Inc Enterprise Agreement 2019.

Aged Care Deloraine Inc

DECISION

Annexure A.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established