Blakehurst Aged Care Services Pty Ltd T/A Blakehurst Aged Care and Retirement Centre

[2014] FWCA 8102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Blakehurst Aged Care Services Pty Ltd T/A Blakehurst Aged Care and Retirement Centre
(AG2014/7738)

IBIS CARE BLAKEHURST, AUSTRALIAN NURSING FEDERATION NSW BRANCH, HEALTH SERVICES UNION NSW BRANCH & MIDWIVES ASSOCIATION ENTERPRISE AGREEMENT 2014.

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 14 NOVEMBER 2014

Application for approval of the IBIS Care Blakehurst, Australian Nursing Federation NSW Branch, Health Services Union NSW Branch & NSW Nurses & Midwives Association Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the IBIS Care Blakehurst, Australian Nursing Federation NSW Branch, Health Services Union NSW Branch & NSW Nurses & Midwives Association 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 Blakehurst Aged Care Services Pty Ltd T/A Blakehurst Aged Care and Retirement Centre. The agreement is a single-enterprise agreement.

[1] The Agreement does contain a flexibility term, however, it is not a flexibility term which complies with s.203(2) of the Act. I note that the model flexibility term is taken, pursuant to s.202(4) of the Act, to be a term of the Agreement. A copy of the model flexibility term is attached to this decision.

[1] An undertaking has been provided by Mr Tony Stephenson, Chief Executive Officer, Blakehurst Aged Care Services. The written undertaking concerning clauses 13.3(b) and 13.3(c) will be taken to be a term of the Agreement pursuant to s.191 of the Act. A copy of the undertaking is attached to this decision.

[1] The Health Services Union New South Wales Branch, the New South Wales branch of the Australian Nursing and Midwifery Federation and the New South Wales Nurses and Midwives’ Association, 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) of the Act, I note that the Agreement covers these organisations.

[1] 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.

[1] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 November 2014. The nominal expiry date of the Agreement is 21 November 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Blakehurst Aged Care Services Pty Ltd T/A Blakehurst Aged Care and Retirement Centre was the subject of an application for the approval of the IBIS Care Blakehurst, Australian Nursing Federation NSW Branch, Health Services Union NSW Branch & NSW Nurses & Midwives Association Enterprise Agreement 2014. The applicant was the employer, while the respondents were the unions representing the employees. The dispute centred on whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue before the court was whether the enterprise agreement contained all the mandatory terms prescribed by the Fair Work Act 2009 and whether it was fair and reasonable. The court needed to determine if the agreement provided for the minimum terms, including wages, hours of work, leave, and other conditions of employment, and if it complied with the procedural requirements for approval.

The court found that the enterprise agreement was comprehensive and included all the mandatory terms required by the Fair Work Act 2009. It noted that the agreement provided for fair and reasonable terms and conditions of employment, and that it had been negotiated in good faith. The court also observed that the agreement met the procedural requirements for approval, including the provision of a copy of the agreement to the Fair Work Commission and the opportunity for the unions to make submissions. Based on these findings, the court approved the enterprise agreement.

The court ordered that the IBIS Care Blakehurst, Australian Nursing Federation NSW Branch, Health Services Union NSW Branch & NSW Nurses & Midwives Association Enterprise Agreement 2014 be approved and registered with the Fair Work Commission. The agreement would now be binding on the employer and the employees, and would govern their employment relationship for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established