DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bankstown City Aged Care Limited T/A Bankstown City Aged Care
(AG2017/4709)

BCAC, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017-2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 7 MARCH 2018

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

[1] An application has been made for approval of an enterprise agreement known as the BCAC, 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 Bankstown City Aged Care Limited T/A Bankstown City Aged Care. 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 28 February 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 (ANMF) and Health Services Union (HSU) 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

The case involved Bankstown City Aged Care Limited, trading as Bankstown City Aged Care, and various unions including the NSW Nurses and Midwives Association and the Health Services Union NSW. The dispute centred on the approval of the Enterprise Agreement between the parties for the period 2017-2020. The matter was brought before the Fair Work Commission. The primary legal issues before the Commission were whether the agreement met the criteria for approval under the Fair Work Act 2009 and whether the process followed to achieve the agreement was compliant with the relevant legislative requirements.

The Commission considered several aspects of the agreement, including its compliance with the 'better off overall test' and whether it contained terms that were not in the best interests of the employees. The Commission examined the process of consultation and the extent to which employees had the opportunity to be involved in the negotiation of the agreement. It was also necessary to assess if the agreement contained any terms that could be considered to be contrary to public policy or to the spirit of the Fair Work Act. After reviewing the evidence and submissions from the parties, the Commission concluded that the agreement met the necessary legislative requirements.

The Commission approved the Enterprise Agreement, finding it to be fair and reasonable. The decision was based on the conclusion that the agreement provided for terms and conditions that were no less favourable than the relevant award or safety net awards, and that it had been negotiated in good faith. The Commission found that the process of consultation was adequate, and that the agreement contained no terms that were contrary to public policy or the spirit of the legislation. Consequently, the agreement was approved, and the Commission made orders to that effect.

Bankstown City Aged Care Limited T/A Bankstown City Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established