[2015] FWCA 2164

The attached document replaces the document previously issued with the above code on 27 March 2015.

The paragraph numbering has been amended to reflect the correct numbering.

Associate to Deputy President Kovacic

27 March 2015

[2015] FWCA 2164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bansley Pty Ltd T/A Carinya of Bicton
(AG2014/10528)

CARINYA AT BICTON ENTERPRISE AGREEMENT 2014

Aged care industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 27 MARCH 2015

Application for approval of the Carinya at Bicton Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Carinya at Bicton Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bansley Pty Ltd T/A Carinya of Bicton. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from Bansley Pty Ltd T/A Carinya of Bicton. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Nursing and Midwifery Federation being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 April 2015. The nominal expiry date of the Agreement 25 March 2019.

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, Bansley Pty Ltd, trading as Carinya of Bicton, applied for the approval of the Carinya at Bicton Enterprise Agreement 2014. The application was made pursuant to section 230 of the Fair Work Act 2009. The agreement was proposed as a replacement for the existing Enterprise Agreement and was intended to govern the employment of workers within the enterprise for a period of three years.

The primary legal issues the Commission needed to address were whether the proposed agreement met the requirements for "bargaining representative approval" under section 229 of the Fair Work Act. This involved determining whether the agreement was made in good faith, whether it was the product of genuine bargaining between the employer and the employees' representatives, and whether it contained terms that were necessary to prevent unfair treatment of employees. Additionally, the Commission considered whether the agreement satisfied the "better off overall test" as required by section 235 of the Act, ensuring that no party was worse off in the agreement than they would be under the applicable award.

The Commission found that the proposed agreement was the product of genuine bargaining and met the good faith requirement. It noted that the agreement contained terms that were necessary to prevent unfair treatment and complied with the better off overall test. The Commission concluded that the agreement was fair and appropriate for approval. As a result, the Fair Work Commission approved the Carinya at Bicton Enterprise Agreement 2014, effective from 1 May 2014.

Bansley Pty Ltd T/A Carinya of Bicton

DECISION

ANNEXURE A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established