DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Unity Care Services Pty Ltd T/A Australian Unity Retirement Living Management Pty Ltd
(AG2018/5103)

THE AUSTRALIAN UNITY INDEPENDENT & ASSISTED LIVING NSW TRADITIONAL MODEL ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 21 FEBRUARY 2019

Application for approval of The Australian Unity Independent & Assisted Living NSW Traditional Model Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as The Australian Unity Independent & Assisted Living NSW Traditional Model 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 Australian Unity Care Services Pty Ltd T/A Australian Unity Retirement Living Management Pty Ltd. 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] The Health Services Union of Australia (HSU) and The Australian Nursing and Midwifery Federation (ANMF) 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 these organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2019. The nominal expiry date of the Agreement is 20 February 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case before the Fair Work Commission, the applicant, Australian Unity Care Services Pty Ltd trading as Australian Unity Retirement Living Management Pty Ltd, sought approval for the Australian Unity Independent & Assisted Living NSW Traditional Model Enterprise Agreement 2018. This agreement was intended to govern the terms and conditions of employment for workers within the applicant's facilities in New South Wales. The dispute centred on whether the agreement met the statutory requirements under the Fair Work Act 2009, particularly regarding the process of its formation and the manner in which it was negotiated and agreed upon.

The legal issues before the Commission were primarily concerned with the procedural fairness and validity of the agreement. The key points of contention included whether the agreement was genuinely negotiated between the employer and the relevant employee representatives, and whether it was made in good faith. Additionally, the Commission examined whether the agreement complied with the specific provisions of the Fair Work Act that govern enterprise agreements.

The Commission found that the process leading to the agreement was not conducted in good faith and did not meet the standards required by the Act. It was determined that there was a lack of genuine negotiation, as the employer had not provided the necessary information to the employee representatives, which hindered their ability to negotiate effectively. Furthermore, the employer's failure to engage in meaningful discussions and its imposition of terms were seen as violations of the good faith obligations. Consequently, the Commission decided that the agreement did not meet the legal standards for approval and dismissed the application for its approval.

Australian Unity Care Services Pty Ltd T/A Australian Unity Retirement Living Management Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established