DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Apex Software Pty Ltd T/A Lark Ellen Aged Care & Gymea Bay Aged Care
(AG2017/2744)

APEX SOFTWARE PTY LTD, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER SAUNDERS	NEWCASTLE, 8 SEPTEMBER 2017

Application for approval of the Apex Software Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Apex Software Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Apex Software Pty Ltd T/A Lark Ellen Aged Care & Gymea Bay Aged Care.The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

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

[5] 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.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Australian Nursing and Midwifery Federation, New South Wales Nurses and Midwives’ Association and 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 15 September 2017. 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 decision, Apex Software Pty Ltd T/A Lark Ellen Aged Care & Gymea Bay Aged Care, the Fair Work Commission was called upon to approve an enterprise agreement that had been negotiated between the employer, Apex Software, and three unions: the NSW Nurses and Midwives’ Association, the Australian Nursing and Midwifery Federation NSW Branch, and the Health Services Union New South Wales Branch. The agreement in question, titled the Apex Software Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017, was submitted for approval under section 234 of the Fair Work Act 2009.

The primary legal issues before the Commission centred on whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Specifically, the Commission had to determine if the agreement was made in good faith, if it was appropriately certified as a single-interest enterprise agreement, and if it met the criteria for being a "better off overall" agreement, ensuring that no employee would be worse off under the new terms compared to their previous conditions. The Commission also needed to consider if the agreement included appropriate protections for vulnerable employees, such as those on lower wages or part-time workers.

After carefully reviewing the evidence and submissions presented by the parties, the Fair Work Commission found that the agreement was made in good faith and was appropriately certified. The Commission was satisfied that the agreement was a single-interest enterprise agreement and that it provided a better-off outcome for the majority of employees. The terms of the agreement were deemed fair and reasonable, and the Commission determined that it included sufficient protections for vulnerable employees. Consequently, the Commission approved the enterprise agreement, confirming that it met the necessary legal standards and could be implemented.

As a result of the decision, the Fair Work Commission granted its approval for the Apex Software Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017. The agreement is now in force and will govern the employment conditions of the employees covered by the agreement, providing a framework for their wages, hours of work, leave entitlements, and other employment-related matters.

Apex Software Pty Ltd T/A Lark Ellen Aged Care & Gymea Bay Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established