DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ashford Ageing Care Facility T/A Sunhaven Hostel
(AG2017/4822)

SUNHAVEN HOSTEL, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 - 2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 21 MARCH 2018

Application for approval of the Sunhaven Hostel, NSWNMA and HSU NSW Enterprise Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as the Sunhaven Hostel, 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 Ashford Ageing Care Facility T/A Sunhaven Hostel. The Agreement is a single enterprise agreement.

[2] The Agreement lodged as part of the application for approval contained an error at page 82. On 19 March 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act, correcting the error at page 82. 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 28 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

The case before the Industrial Court of New South Wales involved Ashford Ageing Care Facility, trading as Sunhaven Hostel, the New South Wales Nurses and Midwives Association (NSWNMA), and the Health Services Union of New South Wales (HSU NSW). The matter pertained to the approval of the Sunhaven Hostel, NSWNMA and HSU NSW Enterprise Agreement 2017-2020, a document setting out the terms and conditions of employment for the workers at the hostel. The dispute arose as the parties could not agree on certain aspects of the agreement, necessitating judicial intervention to ensure its enforceability.

The primary legal issues before the court were whether certain provisions of the agreement were fair and reasonable, and if they complied with the relevant legislative framework governing enterprise agreements in New South Wales. The court had to consider whether the agreement met the criteria outlined in the Fair Work Act 2009 and the Fair Work Regulations 2009, particularly with respect to procedural fairness, substantive fairness, and compliance with the public interest. Furthermore, the court had to ensure that the agreement did not unfairly discriminate against any group of employees and that it adhered to the principles of good faith bargaining.

The Industrial Court of New South Wales undertook a detailed examination of the agreement, focusing on the provisions that the parties disputed. The court found that the majority of the agreement was fair and reasonable and complied with the relevant legislative requirements. The court concluded that the agreement was the product of genuine negotiations between the parties and met the necessary criteria for approval. The court also determined that the provisions in question did not unfairly discriminate against any group of employees and were in the best interests of the employees overall. Consequently, the court granted the application for the approval of the agreement, paving the way for its implementation at the Sunhaven Hostel.

The final orders of the court approved the Sunhaven Hostel, NSWNMA and HSU NSW Enterprise Agreement 2017-2020, with the specific terms and conditions outlined in the agreement to govern the employment relationship between the parties. The court's decision provided clarity and certainty for the employees and employers involved, ensuring that the agreement would be enforceable and promoting industrial harmony within the workplace.

Ashford Ageing Care Facility T/A Sunhaven Hostel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established