DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Benessere Health Care Pty Ltd T/A Parkview Nursing Home
(AG2017/3069)

BENESSERE HEALTH CARE PTY LTD, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	MELBOURNE, 6 SEPTEMBER 2017

Application for approval of the Benessere Health Care Pty Ltd, 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 Benessere Health Care Pty Ltd, 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 Benessere Health Care Pty Ltd T/A Parkview Nursing Home.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 13 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

Benessere Health Care Pty Ltd, trading as Parkview Nursing Home, applied to the Fair Work Commission for the approval of the Benessere Health Care Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017. The application was contested by the employer, which argued that the proposed enterprise agreement contained terms that were contrary to public policy. The Commission was required to determine whether the agreement complied with the Fair Work Act 2009 and whether any terms contravened public policy.

The primary issue before the Commission was whether the proposed enterprise agreement contained terms that were contrary to public policy. The employer argued that certain provisions regarding the administration of medication, including the delegation of tasks to unregulated staff, were inconsistent with the employer’s obligations under the Aged Care Principles 2014. The employer also contended that the agreement allowed for the creation of an unlawful industrial arrangement. The employees' unions, on the other hand, argued that the terms were necessary to ensure safe and effective delivery of care and did not contravene public policy.

The Commission found that the terms in question did not contravene public policy or the Aged Care Principles 2014. The Commission concluded that the provisions were consistent with the employer's obligations to provide safe and effective care and did not create an unlawful industrial arrangement. The Commission noted that the terms were designed to ensure that medication administration was carried out by competent and authorised persons and that they did not compromise the safety and wellbeing of the residents. The Commission approved the enterprise agreement, finding that it was in compliance with the Fair Work Act 2009 and did not contravene public policy.

The Commission approved the Benessere Health Care Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017, effective from 1 July 2017. The employer's objections were dismissed, and the agreement was registered with the Fair Work Commission.

Benessere Health Care Pty Ltd T/A Parkview Nursing Home

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established