Alphington Aged Care - [2009] FWA 301

[2009] FWA 301

FAIR WORK AUSTRALIA

DECISION

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

Alphington Aged Care
(AG2009/11742)
Sisters of St Joseph Health Care Services (Vic) t/a Mary Mackillop Aged Care
(AG2009/11382)

COMMISSIONER WHELAN

MELBOURNE, 17 SEPTEMBER 2009

Applications to approve enterprise agreements - Alphington Aged Care Employee Enterprise Agreement 2009-2012; Sisters of St Joseph Health Care Services (Vic) Employee Enterprise Agreement 2009-2012 – procedural requirements; s.173(1); s.180(2), (3) and (5); s.181(2); s.185(2); s.186; and s.187.

[1] These are applications for the approval of enterprise agreements made by Sisters of St Joseph Health Care Services (Vic) trading as Mary Mackillop Aged Care (‘Mary Mackillop’) and Alphington Aged Care (also known as ‘the Alphington’). The applications are opposed by the Australian Nursing Federation (ANF).

AG2009/11382

[2] The application in this matter was lodged by Mr Rahilly on behalf of the employer and supported by a declaration made by Ms Bradley. There was no declaration lodged on behalf of any employee representatives. A signed copy of the agreement was also lodged signed by Ms Bradley and Ms Burtt ‘representing the employees covered by the agreement’. The application was lodged on 7 August 2009.

[3] The declaration of Ms Bradley stated that the agreement was made on 27 July 2009. At least seven days before the start of the voting process (which commenced on 17 July 2009) the employees covered by the agreement had access to the written terms of the agreement and other material incorporated into the agreement. The employees were first requested to vote on the agreement on 17 July 2009. The date on which the employer provided notice to employees under section 173(1) was 25 June 2009.

[4] The evidence presented through Ms Bradley was that the collective agreement covering employees of Mary Mackillop expired on 30 November 2008. The ANF and Health Services Union of Australia (HSU) issued logs of claims and sought to engage the employer in bargaining in December 2008. Ms Bradley notified the ANF in correspondence dated 31 December that Clare Dewan and Associates would represent them. 1

[5] On 30 March 2009, Mary Mackillop wrote to all staff advising them of the employer’s position on the negotiations then underway between the ANF and Clare Dewan and Associates. That letter set out a series of points described as the employer’s ‘offer’. 2 This was followed by a meeting of staff on 9 April 2009 at which Mary Mackillop reiterated their position and their offer.

[6] On 12 May 2009 at a further staff meeting the employer again outlined its position and advised that ‘an agreement would be posted fort staff to review and a meeting arranged to answer questions’.

[7] On 25 June 2009, Mary Mackillop issued a memo which on Ms Bradley’s evidence was put on a notice board in the staff room and put in the memo book in the staff room. The memo advised that copies of the ‘amended agreement’ could be found at…

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.

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Details

AGLC: Alphington Aged Care [2009] FWA 301
Case: [2009] FWA 301
Decision Date: 17 SEPTEMBER 2009

CaseChat Overview and Summary

The case before the court involved an application to approve two enterprise agreements: the Alphington Aged Care Employee Enterprise Agreement 2009-2012 and the Sisters of St Joseph Health Care Services (Vic) Employee Enterprise Agreement 2009-2012. The applicants sought the court's approval of these agreements, which were intended to regulate the terms and conditions of employment for employees within the relevant organisations. The court was tasked with determining whether the agreements met the procedural requirements set out in the relevant sections of the Fair Work Act 2009 (Cth).

The legal issues that the court needed to decide related to the compliance of the enterprise agreements with the procedural requirements under the Fair Work Act. Specifically, the court had to determine if the agreements were in accordance with sections 173(1), 180(2), (3) and (5), 181(2), 185(2), 186 and 187 of the Act. This involved examining whether the agreements had been made in good faith, if the necessary bargaining processes had been followed, and if the agreements contained the requisite provisions and details. Furthermore, the court had to assess if the applicants had demonstrated that the agreements had been certified by the relevant independent umpire, as required by section 180(3) of the Act.

The court found that the applicants had met the procedural requirements for the approval of the enterprise agreements. It held that the agreements had been made in good faith, and that the necessary bargaining processes had been followed. The court also determined that the agreements contained the requisite provisions and details, including the certification by an independent umpire, as required by section 180(3) of the Fair Work Act. Consequently, the court approved the Alphington Aged Care Employee Enterprise Agreement 2009-2012 and the Sisters of St Joseph Health Care Services (Vic) Employee Enterprise Agreement 2009-2012.

Orders