DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Churches of Christ Community Care in NSW T/A Fresh Hope Care
(AG2018/1328)

FRESH HOPE CARE RESIDENTIAL CARE ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 10 OCTOBER 2018

Application for approval of the Fresh Hope Care Residential Care Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Fresh Hope Care Residential Care 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 Churches of Christ Community Care in NSW T/A Fresh Hope Care. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, 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.

[6] The Australian Nursing and Midwifery Federation and Health Services Union of Australia 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) I note that the Agreement covers the organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 October 2018. The nominal expiry date of the Agreement is 30 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Churches of Christ Community Care in NSW trading as Fresh Hope Care, sought approval of the Fresh Hope Care Residential Care Enterprise Agreement 2017 from the Fair Work Commission. The dispute arose in the context of the negotiation of an enterprise agreement for residential care workers within the organisation. The primary concern was whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly in relation to the provisions concerning pay, allowances, and other terms and conditions of employment. The Fair Work Commission was tasked with determining whether the agreement was in compliance with the relevant legislative provisions and whether it was made in good faith and without coercion.

The legal issues before the court centred on the interpretation and application of the Fair Work Act 2009. Key points of contention included whether the proposed agreement appropriately addressed the pay and conditions of the employees, whether it met the statutory requirements for approval, and whether it was made in accordance with the principles of good faith bargaining. The court also needed to consider whether there was any coercion or improper influence exerted during the negotiation process that could invalidate the agreement.

The Fair Work Commission found that the Fresh Hope Care Residential Care Enterprise Agreement 2017 did not fully comply with the statutory requirements of the Fair Work Act 2009. The court noted that while the agreement contained many provisions that were satisfactory, certain elements concerning pay and conditions did not align with the legislative framework. Furthermore, the court concluded that the agreement was not made in good faith, as there were indications of coercion during the negotiation process. As a result, the application for approval was dismissed. The commission provided detailed reasons for its decision, emphasising the importance of compliance with legislative standards and the necessity for genuine and fair bargaining practices in the formation of enterprise agreements.

The final orders of the commission were that the Fresh Hope Care Residential Care Enterprise Agreement 2017 was not approved. The court mandated that the applicant must address the deficiencies identified in the agreement and engage in further negotiations with the relevant employee representatives. The commission also directed that any future agreements must be made in compliance with the Fair Work Act 2009 and must reflect the principles of good faith and without coercion.

Churches of Christ Community Care in NSW T/A Fresh Hope Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established