Armenian Rest Home Association Ltd T/A Alexander Aged Care Summary

[2017] FWCA 4816

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Armenian Rest Home Association Ltd T/A Alexander Aged Care

(AG2017/3748)

Armenian Rest Home Association, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017

Aged care industry
Commissioner Saunders	NEWCASTLE, 15 SEPTEMBER 2017

Application for approval of the Armenian Rest Home Association, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as Armenian Rest Home Association, 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 Armenian Rest Home Association Ltd T/A Alexander Aged Care. The Agreement is a single enterprise agreement.

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.

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.

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

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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 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

The Armenian Rest Home Association, trading as Alexander Aged Care, applied for the approval of its 2017 enterprise agreement under the Fair Work Act 2009. 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. The dispute centred on whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the enterprise agreement was appropriately certified and approved. This involved examining the process by which the agreement was negotiated and whether it met the criteria for coverage, negotiation, and the rights of employees. The court also considered if the agreement contained mandatory terms that were compliant with the provisions of the Act. Furthermore, the court needed to ensure that the agreement did not have any terms that were against public policy.

The Federal Circuit Court found that the application for approval of the enterprise agreement was valid. The court determined that the negotiation process adhered to the requirements of the Fair Work Act, and the agreement was appropriately certified. The court further held that the agreement contained all necessary mandatory terms and did not contravene any public policy. Consequently, the court approved the Armenian Rest Home Association, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

Armenian Rest Home Association Ltd T/A Alexander Aged Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established