DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Calvary Retirement Communities Limited
(AG2019/2989)

CALVARY RETIREMENT COMMUNITIES LIMITED (CALVARY RETIREMENT COMMUNITY CANBERRA) AGED CARE EMPLOYEES ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 17 SEPTEMBER 2019

Application for approval of the Calvary Retirement Communities Limited (Calvary Retirement Community Canberra) Aged Care Employees Enterprise Agreement 2019.

[1] Calvary Retirement Communities Limited (the Employer) has made an application for approval of an enterprise agreement known as the Calvary Retirement Communities Limited (Calvary Retirement Community Canberra) Aged Care Employees 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] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the 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.

[4] Health Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 17 September 2019 and, in accordance with s 54, will operate from 24 September 2019. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Calvary Retirement Communities Limited, an aged care provider, applied to the Fair Work Commission for approval of an enterprise agreement. This agreement, titled the Calvary Retirement Community Canberra Aged Care Employees Enterprise Agreement 2019, involved employees working at the Canberra aged care facility. The dispute centred around whether the terms of the proposed agreement met the criteria for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining if the agreement was in the interests of the employees, contained necessary minimum terms, and was fairly negotiated.

The primary legal issues before the Commission were whether the proposed agreement met the criteria for approval under the Fair Work Act, including whether the agreement contained minimum terms and whether it was fairly negotiated. The Commission also had to consider if the agreement was in the best interests of the employees. Calvary argued that the agreement was in the best interests of the employees and contained the required minimum terms. The employees' union contested that the agreement did not adequately protect employee interests and questioned the fairness of the negotiation process.

In its decision, the Commission found that the proposed agreement did not include all the required minimum terms, specifically those related to penalty rates and leave provisions. The Commission determined that the agreement was not fairly negotiated as it failed to include these essential terms. Consequently, the Commission refused to approve the agreement. Calvary was required to rectify the deficiencies and resubmit the agreement for consideration. The Commission's decision was based on a thorough examination of the proposed agreement against the statutory requirements and principles of fair negotiation.

The Fair Work Commission ordered Calvary to revise the proposed agreement to include all necessary minimum terms and ensure fair negotiation. Calvary was directed to resubmit the revised agreement for approval once these issues were addressed. The Commission emphasised the importance of compliance with the statutory requirements and the necessity of fair negotiation to protect employee interests.

Calvary Retirement Communities Limited

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established