DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bays Care Pty Ltd as trustee for Bays Care Settlement T/A Bays Care Pty Ltd
(AG2017/2963)

PATHWAYS RESIDENCES, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	MELBOURNE, 4 SEPTEMBER 2017

Application for approval of the Pathways Residences, 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 Pathways Residences, 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 Bays Care Pty Ltd as trustee for Bays Care Settlement T/A Bays Care Pty Ltd.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 11 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

Bays Care Pty Ltd as trustee for Bays Care Settlement, trading as Bays Care Pty Ltd, applied to the Fair Work Commission for approval of the Pathways Residences, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017. The respondents, Pathways Residences, the NSW Nurses and Midwives’ Association, the Australian Nursing and Midwifery Federation NSW Branch, and the Health Services Union NSW Branch, did not oppose the application but raised concerns about certain provisions. The matter was heard and determined by the Fair Work Commission, which had to consider whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central issue before the Commission was whether the provisions of the agreement were in compliance with the relevant statutory requirements and did not include any terms that were contrary to public policy or that had been obtained by means of duress, coercion, or undue influence. The Commission needed to determine if the agreement contained mandatory terms that were necessary to protect employees, and if any terms that were considered to be non-mandatory were fair and reasonable. The Commission also had to consider whether the agreement provided for the proper management of the workplace and protected the interests of both the employer and employees.

The Commission found that the agreement did not include any terms that were contrary to public policy or obtained by duress, coercion, or undue influence. The provisions that related to the management of the workplace were considered to be necessary and appropriate, and the non-mandatory terms were found to be fair and reasonable. The Commission was satisfied that the agreement provided for the proper management of the workplace and protected the interests of both the employer and employees. The Commission approved the agreement, noting that it met the criteria for approval under the Fair Work Act 2009.

The Fair Work Commission approved the Pathways Residences, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017, finding that it met the criteria for approval under the Fair Work Act 2009. The agreement was deemed to be compliant with the relevant statutory requirements and did not include any terms that were contrary to public policy or that had been obtained by means of duress, coercion, or undue influence. The Commission found that the provisions relating to the management of the workplace were necessary and appropriate, and that the non-mandatory terms were fair and reasonable. The agreement was approved, effective from the date of the Commission's decision.

Bays Care Pty Ltd as trustee for Bays Care Settlement T/A Bays Care 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