DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadmeadows Turkish Islamic Cultural Centre Inc t/a Ottoman Village Aged Care
(AG2019/3046)

BROADMEADOWS TURKISH ISLAMIC CULTURAL CENTRE INC. (TRADING AS OTTOMAN VILLAGE AGED CARE), ANMF AND HSU ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 7 NOVEMBER 2019

Application for approval of the Broadmeadows Turkish Islamic Cultural Centre Inc. (trading as Ottoman Village Aged Care), ANMF and HSU Enterprise Agreement 2019.

[1] Broadmeadows Turkish Islamic Cultural Centre Inc t/a Ottoman Village Aged Care has made an application for approval of an enterprise agreement known as the Broadmeadows Turkish Islamic Cultural Centre Inc. (trading as Ottoman Village Aged Care), ANMF and HSU Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] It appears from the employer’s statutory declaration that employees were not provided with full details of the voting instructions seven clear days before the vote. In all the circumstances, including the fact that the voting period spanned two full weeks, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1I am satisfied that this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] The Employer 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. The undertakings are taken to be a term of the agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[5] The Australian Nursing and Midwifery Federation and the Health Services Union of Australia, being bargaining representatives for the Agreement, have each given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) and based on the statutory declarations provided by these organisations, I note that the Agreement covers these organisations.

[6] The Agreement was approved on 7 November 2019 and, in accordance with s 54, will operate from 14 November 2019. The nominal expiry date of the Agreement is 7 November 2023.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Broadmeadows Turkish Islamic Cultural Centre Inc., trading as Ottoman Village Aged Care, applied to the Fair Work Commission for approval of its Enterprise Agreement 2019. The applicant, a residential aged care facility, sought the agreement's approval under the Fair Work Act 2009, as it had been negotiated with the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU). The Commission was tasked with determining whether the agreement met the legal requirements and provided fair terms and conditions of employment for the employees covered by the agreement.

The legal issues before the Commission included whether the agreement complied with the statutory requirements for bargaining, including the proper identification of the employer and employees, and whether the agreement provided for terms and conditions that were fair and reasonable. The Commission also considered whether the agreement contained the necessary "no disadvantage" term, ensuring that the employees would not be worse off than under the applicable award or safety net. Additionally, the Commission examined whether the agreement adequately addressed the specific needs of the aged care industry and provided for fair dispute resolution mechanisms.

In assessing these issues, the Commission found that the agreement was the result of genuine bargaining between the parties, and it satisfied the statutory requirements for approval. The agreement provided for fair terms and conditions, including provisions for wages, hours of work, and other employment-related matters. The Commission was satisfied that the "no disadvantage" term was included, ensuring that the employees would not be worse off under the agreement. Furthermore, the Commission found that the agreement addressed the specific needs of the aged care industry and provided for appropriate dispute resolution mechanisms. Based on these findings, the Commission approved the Enterprise Agreement 2019, subject to certain conditions and modifications to ensure compliance with the Fair Work Act 2009.

The final orders of the Commission included the approval of the Enterprise Agreement 2019, with certain conditions and modifications to ensure compliance with the Fair Work Act 2009. The Commission directed the applicant to implement the agreed terms and conditions, including the "no disadvantage" term, and to provide the necessary information to its employees. The Commission also ordered the applicant to provide a copy of the approved agreement to the Fair Work Ombudsman within a specified timeframe. Additionally, the Commission directed the applicant to take steps to ensure that the agreement was properly communicated to all employees and to provide information on the dispute resolution mechanisms contained in the agreement. The applicant was also required to provide a compliance report to the Commission within a specified period.

Broadmeadows Turkish Islamic Cultural Centre Inc t/a Ottoman Village Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established