DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aspic Holdings Pty Ltd T/A Ferndale Residential Aged Care Facility
(AG2017/3613)

ASPIC HOLDINGS PTY LTD, 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 Aspic Holdings Pty Ltd, 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 Aspic Holdings Pty Ltd, 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 Aspic Holdings Pty Ltd T/A Ferndale Residential Aged Care Facility.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

The case involves an application for the approval of an enterprise agreement between Aspic Holdings Pty Ltd, trading as Ferndale Residential Aged Care Facility, and various unions including the NSW Nurses and Midwives Association, the Australian Nursing and Midwifery Federation NSW Branch, and the Health Services Union New South Wales Branch. The agreement in question is the Enterprise Agreement 2017. The matter was heard in the Fair Work Commission.

The legal issues before the Commission centred on whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly whether it satisfied the "better off overall test" and was made in good faith. This test requires that employees be no worse off financially and preferably better off overall when compared to their previous conditions. The Commission also had to consider whether the agreement was appropriately negotiated and if it contained all necessary provisions as per the legislative framework.

The Fair Work Commission found that the agreement did satisfy the better off overall test, with the employees likely to benefit from the proposed changes. The Commission was satisfied that the agreement had been negotiated in good faith and contained all required provisions. The application was thus approved, recognising the agreement as a valid and enforceable enterprise agreement under the Fair Work Act 2009.

No further orders were made by the Commission beyond the approval of the enterprise agreement. The decision is final and binding, establishing the terms and conditions of employment for the employees covered by the agreement.

Aspic Holdings Pty Ltd T/A Ferndale Residential Aged Care Facility

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established