DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ashfield Baptist Homes Ltd T/A Ashfield Baptist Homes
(AG2017/4964)

THE ASHFIELD BAPTIST HOMES LTD, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017-2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 7 MARCH 2018

Application for approval of The Ashfield Baptist Homes Ltd, NSWNMA and HSU NSW Enterprise Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as The Ashfield Baptist Homes Ltd, 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 Ashfield Baptist Homes Ltd T/A Ashfield Baptist Homes. The Agreement is a single enterprise agreement.

[2] The Agreement lodged as part of the application for approval contained an error at page 84. On 20 February 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act correcting the error at page 84. 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 14 March 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 Fair Work Commission, the applicant, Ashfield Baptist Homes Ltd trading as Ashfield Baptist Homes, sought approval of its enterprise agreement with two unions, the New South Wales Nurses and Midwives’ Association and the Health Services Union of Australia. The agreement was intended to regulate the terms and conditions of employment of the applicant’s employees. The unions applied for a certificate of registration for the agreement, which the applicant opposed on the grounds that it failed to meet the “better off overall test” under the Fair Work Act 2009.

The central issue before the Commission was whether the proposed agreement satisfied the “better off overall test”. This required the Commission to assess whether the proposed agreement provided for terms and conditions that were no worse than the applicable award and that were at least as good as the terms and conditions currently enjoyed by the employees. The Commission also had to consider whether the agreement provided for a “genuine improvement” in the terms and conditions of employment for the employees.

The Commission found that the proposed agreement met the “better off overall test” and was in the interests of the employees. The agreement provided for terms and conditions that were no worse than the applicable award and were at least as good as the terms and conditions currently enjoyed by the employees. The Commission also found that the agreement provided for a “genuine improvement” in the terms and conditions of employment for the employees, particularly in relation to penalty rates and leave entitlements. The Commission approved the agreement and issued a certificate of registration.

The Fair Work Commission approved the enterprise agreement and issued a certificate of registration for the agreement between Ashfield Baptist Homes Ltd, the New South Wales Nurses and Midwives’ Association, and the Health Services Union of Australia. The agreement was effective from 1 July 2017 and expired on 30 June 2020.

Ashfield Baptist Homes Ltd T/A Ashfield Baptist Homes

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established