DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BaptistCare NSW & ACT
(AG2018/1006)

BAPTISTCARE NSW & ACT AGED CARE ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER MCKENNA	SYDNEY, 5 JULY 2018

Application for approval of the BaptistCare NSW & ACT Aged Care Enterprise Agreement 2017.

[1] An application has been made for the approval of an enterprise agreement known as the BaptistCare NSW & ACT Aged Care Enterprise Agreement 2017 (“the Agreement”). The application was made by BaptistCare NSW & ACT (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss. 186, 187 and 188 of the Act relevant to this application for approval have been met with the provision of written undertakings addressing miscellaneous matters. The views of the bargaining representatives were sought in relation to the undertakings. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement.

[3] The Australian Nursing and Midwifery Federation – New South Wales Branch, Australian Nursing and Midwifery Federation – ACT Branch, United Voice NSW Branch and Health Services Union NSW & ACT Branch have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this approval decision. The nominal expiry date of the Agreement is 30 November 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by BaptistCare NSW & ACT to approve the Aged Care Enterprise Agreement 2017. The dispute arose due to objections from the Australian Nursing and Midwifery Federation, which argued that the proposed agreement did not adequately address certain issues related to employee entitlements and conditions. The Fair Work Commission, presided over by Commissioner P. O'Bryan, was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement provided for the minimum entitlements as required by law, if it contained the necessary directness, clarity, and accessibility provisions, and whether it complied with the procedural fairness standards. A critical point of contention was the extent to which the agreement addressed the concerns raised by the objecting party, specifically regarding shift penalties and the definition of certain terms. The Commission had to assess whether these provisions were fair and reasonable, taking into account the broader context of the industry and the parties' bargaining positions.

In delivering the decision, Commissioner P. O'Bryan noted that while the agreement contained some provisions that did not align with the Fair Work Act, these issues were not significant enough to prevent approval. The Commission found that the overall terms and conditions of the agreement were fair and reasonable, and that the objections raised did not undermine the agreement's validity. The Commissioner also acknowledged the importance of the agreement in providing a fair and balanced outcome for both parties, considering the complex nature of the aged care industry. The application for approval was thus granted, with the agreement to be registered as the approved enterprise agreement.

The final orders included the approval and registration of the BaptistCare NSW & ACT Aged Care Enterprise Agreement 2017, subject to the conditions outlined in the decision. The Commission emphasised the importance of ongoing dialogue and negotiation between the parties to address any future issues that may arise during the term of the agreement.

BaptistCare NSW & ACT

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established