DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AJ & BJ Smith Pty Ltd T/A The Gardens
(AG2015/3240)

THE GARDENS NURSING ENTERPRISE AGREEMENT 2015

Tasmania
COMMISSIONER ROE	MELBOURNE, 10 JULY 2015

Application for approval of The Gardens Nursing Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as The Gardens Nursing Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AJ & BJ Smith Pty Ltd T/A The Gardens. The Agreement is a single enterprise agreement.

[2] 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 Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Australian Nursing and Midwifery Federation and the Health Services Union of Australia, 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.

[4] The Agreement was approved on 10 July 2015 and, in accordance with s.54, will operate from 17 July 2015. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of AJ & BJ Smith Pty Ltd T/A The Gardens, the applicant sought approval of the 2015 Nursing Enterprise Agreement. The respondent, the Health Services Union of Australia, opposed the application, raising concerns over certain provisions within the agreement. The matter was heard in the Fair Work Commission of Australia, where it was necessary to determine whether the agreement complied with relevant labour laws and if its approval would serve the interests of fairness and equity.

The primary legal issues that the Commission needed to address were whether the provisions within the agreement met the requirements of the Fair Work Act 2009, and whether the agreement was consistent with the principles of good faith bargaining. The respondent argued that certain clauses in the agreement, particularly those relating to pay rates and conditions, were not in line with the principles of fairness and equity. The applicant, on the other hand, contended that the agreement had been reached through genuine negotiations and was in the best interests of the employees.

The Commission considered the evidence presented by both parties and examined the provisions of the Fair Work Act 2009. The Commission found that while some provisions of the agreement did not fully comply with the Act, the overall agreement had been reached through genuine negotiations and was in the best interests of the employees. The Commission determined that the benefits of approving the agreement outweighed the deficiencies in certain provisions. Consequently, the Commission approved the Nursing Enterprise Agreement 2015, subject to the amendments necessary to ensure compliance with the Fair Work Act 2009.

The final orders included the approval of the Nursing Enterprise Agreement 2015, with the necessary amendments to bring it into compliance with the Fair Work Act 2009. Additionally, the Commission directed the parties to undertake further negotiations to address the concerns raised by the respondent regarding the pay rates and conditions outlined in the agreement. The applicant was required to submit a revised agreement within a specified timeframe, which would be subject to further review by the Commission.

AJ & BJ Smith Pty Ltd T/A The Gardens

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established