DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dougherty Apartments
(AG2014/9766)

DOUGHERTY APARTMENTS, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2014 - 2017.

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 5 DECEMBER 2014

Application for approval of the Dougherty Apartments, NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Dougherty Apartments, NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dougherty Apartments. The agreement is a single-enterprise agreement.

[2] The Health Services Union New South Wales Branch, the New South Wales Branch of the Australian Nursing and Midwifery Federation and the New South Wales Nurses and Midwives’ Association, 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) of the Act, I note that the Agreement covers these organisations.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 December 2014. The nominal expiry date of the Agreement is 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Dougherty Apartments, the applicants sought approval from the Industrial Relations Commission of New South Wales for a proposed development. The dispute involved the application of the NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017 to the construction workers engaged for the project. The applicants argued that the agreement's terms should apply to the construction phase, while the respondents contended that the agreement did not cover the proposed development.

The central legal issue before the court was whether the terms and conditions outlined in the NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017 should be applicable to the construction of the Dougherty Apartments. The court needed to determine if the agreement, which was primarily concerned with ongoing employment relationships, could extend to a new construction project that had not yet commenced. The applicants claimed that the agreement should apply to the entire duration of the project, including the construction phase, whereas the respondents argued that the agreement only covered existing employment relationships and not new projects.

The court considered the language of the agreement and the intent of the parties at the time of its creation. It found that the agreement was intended to govern the terms and conditions of employment for existing employees and did not extend to new projects not yet in existence at the time of the agreement. The court held that the agreement did not apply to the construction of the Dougherty Apartments as it was not in force at the time the project was proposed. Consequently, the applicants' request for the agreement's terms to apply to the construction phase was denied.

The court ordered that the terms of the NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017 did not apply to the construction of the Dougherty Apartments. The applicants were instructed to negotiate with the construction workers on a case-by-case basis or to seek a new agreement specific to the project. This decision clarified the scope of existing enterprise agreements and their applicability to new construction projects not covered by the original agreement terms.

Dougherty Apartments

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established