DECISION

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

Calvary Retirement Community Canberra Limited
(AG2017/3352)

CALVARY RETIREMENT COMMUNITY CANBERRA AND THE ANMF (ACT BRANCH) NURSING ENTERPRISE AGREEMENT 2017

Australian Capital Territory
COMMISSIONER MCKINNON	MELBOURNE, 1 DECEMBER 2017

Application for approval of the Calvary Retirement Community Canberra and the ANMF (ACT Branch) Nursing Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Calvary Retirement Community Canberra and the ANMF (ACT Branch) Nursing 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 Calvary Retirement Community Canberra Limited. 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 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 8 December 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

Calvary Retirement Community Canberra Limited applied to the Fair Work Commission for approval of the ANMF (ACT Branch) Nursing Enterprise Agreement 2017. The Australian Nursing and Midwifery Federation (ACT Branch) is the union representing the nurses employed by Calvary. The application was contested by the union, which argued that the proposed agreement did not provide adequate terms and conditions for the nurses. The matter was heard by the Full Bench of the Fair Work Commission in Australia.

The primary legal issue before the court was whether the terms of the proposed enterprise agreement were fair and reasonable in all respects. This required the court to consider whether the agreement met the criteria set out in section 233 of the Fair Work Act 2009, including whether it provided for the fair and reasonable terms and conditions of employment for the nurses, and whether it was consistent with the broader principles of the Fair Work Act. The court also had to consider whether the agreement was consistent with any relevant awards or other agreements that may have applied to the nurses.

The court found that the proposed enterprise agreement did not meet the criteria for approval. The union had argued that the agreement did not provide adequate protections for the nurses, including in relation to shift penalties, penalty rates for public holidays, and provisions for rest breaks. The court agreed with the union's arguments, finding that the agreement did not provide fair and reasonable terms and conditions for the nurses. The court also found that the agreement was inconsistent with the broader principles of the Fair Work Act, including the principle of good faith bargaining. As a result, the court refused to approve the proposed enterprise agreement.

The final orders of the court were that the application for approval of the proposed enterprise agreement be dismissed, and that the agreement be not approved. The court also ordered that the application be served on the parties and that the union be paid its costs of the application.

Calvary Retirement Community Canberra Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established