DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ARPAD Elderly Welfare Society Inc.
(AG2019/940)

ARPAD ELDERLY WELFARE SOCIETY INC. (TRADING AS ARPAD AGED CARE), ANMF AND HSU ENTERPRISE AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 MAY 2019

Application for approval of the Arpad Elderly Welfare Society Inc. (trading as Arpad Aged Care), ANMF and HSU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Arpad Elderly Welfare Society Inc. (trading as Arpad Aged Care), ANMF and HSU Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ARPAD Elderly Welfare Society Inc.. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, 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.

[4] I note that Clause 54 is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 May 2019. The nominal expiry date of the Agreement is 30 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Arpad Elderly Welfare Society Inc. (trading as Arpad Aged Care), the Australian Nursing and Midwifery Federation (ANMF), and the Health Services Union (HSU) brought forth an application for the approval of their 2018 Enterprise Agreement. The applicants sought to have the agreement ratified to ensure it met the statutory requirements under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the legislative framework, particularly regarding provisions for employee rights, working conditions, and dispute resolution mechanisms.

The court had to consider several key legal issues, primarily whether the agreement complied with the procedural requirements of the Fair Work Act, and if it adhered to the substantive fairness test. This involved scrutinising the negotiation process, the fairness of the terms, and the balance of rights and obligations for both the employer and the employees. Additionally, the court needed to ensure that the agreement did not contain any terms that would be contrary to public policy or unenforceable under the law.

The court found that the negotiation process was conducted in good faith and that the agreement was fair and reasonable in all its terms. The court concluded that the agreement met all the necessary statutory requirements and did not contravene any public policy or legal principles. As a result, the court approved the Enterprise Agreement, recognising it as legally binding on all parties involved. The final orders of the court mandated the enforcement of the agreement as per the terms specified, providing clarity and legal certainty for the parties moving forward.

ARPAD Elderly Welfare Society Inc.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established