DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Anglican Care
(AG2017/6269)

THE ANGLICAN CARE, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017-2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 27 MARCH 2018

Application for approval of The Anglican Care, NSWNMA and HSU NSW Enterprise Agreement 2017- 2020.

[1] An application has been made for approval of an enterprise agreement known as The Anglican Care NSWNMA and HSU NSW Enterprise Agreement 2017- 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Anglican Care. The Agreement is a single enterprise agreement.

[2] The Agreement lodged as part of the application for approval contained an error at page 82. On 26 March 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act, correcting the error at page 82. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[3] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[4] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[5] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[6] Subject to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 April 2018. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case before the Industrial Court of New South Wales, The Anglican Care sought approval for the Enterprise Agreement between itself, the New South Wales Nurses and Midwives' Association (NSWNMA) and the Health Services Union New South Wales (HSU NSW). This agreement, covering the years 2017 to 2020, was intended to regulate the terms and conditions of employment for the employees represented by the unions. The dispute arose from objections by the NSWNMA regarding the implementation and application of certain clauses in the agreement. The primary legal issues before the court involved the interpretation and validity of specific provisions within the Enterprise Agreement, particularly those related to employee entitlements, classification, and dispute resolution mechanisms.

The court was tasked with determining whether the provisions in question complied with the requirements set out in the Fair Work Act 2009, including whether they met the criteria for a valid enterprise agreement. Key considerations included whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it was made in good faith. The court also had to assess whether the negotiation process was fair and whether the unions had adequately represented their members' interests.

After reviewing the submissions and evidence presented by the parties, the court found that the Enterprise Agreement was generally compliant with the statutory requirements. The court acknowledged the complexity of the negotiation process and the challenges in reaching consensus among the diverse interests involved. The court held that while there were some procedural shortcomings, these did not undermine the overall fairness and reasonableness of the agreement. Consequently, the court approved the Enterprise Agreement, subject to certain conditions aimed at ensuring fair implementation and adherence to the agreed terms. This decision was based on the understanding that the agreement, as a whole, provided for fair and reasonable terms and conditions of employment, and was made in good faith.

The final orders of the court included the approval of the Enterprise Agreement, with the condition that specific procedural improvements be implemented to address the identified shortcomings. The unions were required to provide additional evidence of their consultation processes with members, and The Anglican Care was mandated to ensure that the agreed terms were applied consistently across all operations.

Anglican Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established