DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ark Health Care Oatley T/A Ark Health Care (Hillcrest & Russell Lea) Pty Ltd
(AG2017/3629)

ARK HEALTH CARE GROUP, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 19 SEPTEMBER 2017

Application for approval of the Ark Health Care Group, 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 Ark Health Care Group, 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 Ark Health Care Oatley T/A Ark Health Care (Hillcrest & Russell Lea) Pty Ltd.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 26 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

Ark Health Care Oatley T/A Ark Health Care (Hillcrest & Russell Lea) Pty Ltd recently sought approval of its 2017 enterprise agreement. The application was made to the Fair Work Commission, which was asked to determine if the agreement was in the best interests of the employees. The application was contested by the NSW Nurses and Midwives' Association, Australian Nursing and Midwifery Federation NSW Branch, and Health Services Union New South Wales Branch. These unions argued that the agreement was not in the best interests of the employees as it did not provide for adequate pay and conditions.

The key legal issue before the Fair Work Commission was whether the enterprise agreement was in the best interests of the employees. This involved assessing the agreement against the criteria outlined in the Fair Work Act 2009, which requires that an agreement must be in the best interests of the employees, taking into account the likely effect of the agreement on employees' wages, conditions of employment and terms of employment. The unions argued that the agreement did not adequately provide for the employees' pay and conditions, while the applicant contended that it did.

The Fair Work Commission found that the enterprise agreement was in the best interests of the employees. It found that the agreement provided for a range of benefits to employees, including pay increases, improved conditions of employment, and better terms of employment. The Commission also found that the agreement provided for a transparent and fair process for resolving disputes between employees and the employer. The Commission noted that the agreement had been negotiated in good faith and that it provided for a range of mechanisms for monitoring and reviewing the agreement. The Commission concluded that the agreement was in the best interests of the employees.

The Fair Work Commission approved the enterprise agreement. The Commission made an order that the agreement be approved and registered. The order also provided for the agreement to be in effect from the date of the Commission's decision. The unions were granted leave to appeal the decision to the Federal Court.

Ark Health Care Oatley T/A Ark Health Care (Hillcrest & Russell Lea) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established