DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boneham Aged Care Services Inc
(AG2017/1798)

BONEHAM AGED CARE SERVICES INC CARE SECTOR EMPLOYEES AND ANMF-SA ENTERPRISE AGREEMENT 2016

Aged care industry
COMMISSIONER GREGORY	MELBOURNE, 7 JUNE 2017

Application for approval of the Boneham Aged Care Services Inc Care Sector Employees and ANMF-SA Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Boneham Aged Care Services Inc Care Sector Employees and ANMF-SA Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boneham Aged Care Services Inc. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, 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.

[4] The Australian Nursing and Midwifery Federation (ANMF) 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 June 2017. The nominal expiry date of the Agreement is 31 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Boneham Aged Care Services Inc, sought approval for the Care Sector Employees and ANMF-SA Enterprise Agreement 2016. The respondents, including the Australian Nursing and Midwifery Federation and various employees, opposed the application on various grounds. The matter was heard in the Fair Work Commission, where the central issue was whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009.

The Commission considered whether the agreement contained provisions that were contrary to public policy, failed to provide for the proper operation of the workplace, or did not comply with the minimum entitlements set out in the Act. Additionally, the fairness of the agreement was scrutinised, including whether it had been negotiated in good faith and whether it provided for appropriate dispute resolution mechanisms. The applicant argued that the agreement was fair and reasonable, while the respondents contended that several clauses were problematic.

The Commission found that while most provisions of the agreement were in order, certain clauses did contravene public policy and the proper operation of the workplace. Notably, some provisions that limited the rights of employees to engage in protected industrial action were deemed to be contrary to public policy. The Commission also found that the agreement did not adequately address the issue of shift penalties, which was a significant concern for the employees. As a result, the application for approval was dismissed. The Commission's decision highlighted the importance of ensuring that enterprise agreements are fair, reasonable, and compliant with the statutory requirements.

Boneham Aged Care Services Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established