Embracia Communities Pty Ltd T/A Embracia in Glasshouse Country; Embracia Communities Pty Ltd T/A Embracia on the Avenue; Embracia Group Pty Ltd T/A Embracia on Bribie Summary

[2014] FWCA 4313

FAIR WORK COMMISSION

DECISION

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

Embracia Communities Pty Ltd T/A Embracia in Glasshouse Country; Embracia Communities Pty Ltd T/A Embracia on the Avenue; Embracia Group Pty Ltd T/A Embracia on Bribie
(AG2014/6449)

EMBRACIA AGED CARE QUEENSLAND ENTERPRISE AGREEMENT 2013 - 2016

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 30 JUNE 2014

Application for approval of the Embracia Aged Care Queensland Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Embracia Aged Care Queensland Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Embracia Communities Pty Ltd T/A Embracia in Glasshouse Country; Embracia Communities Pty Ltd T/A Embracia on the Avenue; Embracia Group Pty Ltd T/A Embracia on Bribie. Although there are three Applicants they are to be taken as one employer pursuant to s.168A(4) of the Act.The Agreement is a single-enterprise agreement.

[2] The application was not lodged within 14 days after the Agreement was made but was withdrawn and re-lodged outside 14 days after the Agreement was made. Pursuant to s.185(3)(b), in all the circumstances the Commission considers it fair to extend the time for making the application to the date it was actually made.

[3] The Applicant has provided written undertakings about flexibility arrangements, annual leave entitlements and the definition of a shift worker. The Commission sought the views of all bargaining representatives about the undertakings. Only the Queensland Nurses’ Union (QNU) responded. The QNU indicated that it supported the approval of the Agreement with the undertakings provided. The Commission is satisfied that the made 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 Commission accepts the undertakings attached to this decision at Attachment A.

[4] Subject to the undertakings referred to above the Commission is satisfied that each of the requirements of ss.186, 187 and 188 and s.190 as are relevant to this application for approval have been met.

[5] The Queensland Nurses' Union, 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), the Commission notes that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2014. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Attachment A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Embracia Communities Pty Ltd, sought approval for the Embracia Aged Care Queensland Enterprise Agreement 2013-2016, which would govern the terms and conditions of employment for their employees in Queensland. The application was made before the Fair Work Commission, which was required to determine whether the agreement met the requirements of the Fair Work Act 2009. The respondents to the application included various employee representatives and the Queensland Government, represented by the Department of Employment. The central legal issue before the Commission was whether the proposed agreement complied with the relevant provisions of the Fair Work Act, particularly in terms of its coverage, content, and procedural fairness. The Commission needed to assess whether the agreement provided for fair and reasonable terms and conditions of employment, including minimum rates of pay, leave entitlements, and other benefits. Additionally, the Commission had to consider whether the agreement had been negotiated in good faith and whether the process of negotiation and agreement formation was fair and transparent.

In making its decision, the Fair Work Commission considered the evidence and submissions from both the applicants and respondents. The Commission found that the proposed agreement generally met the requirements of the Fair Work Act. It was comprehensive, covering a wide range of employment terms and conditions, and provided for fair and reasonable outcomes for the employees. The Commission also found that the negotiation process had been conducted in good faith and was procedurally fair. The Commission approved the agreement, subject to certain minor modifications to address specific concerns raised by the respondents. The modifications related mainly to clarifications in the agreement's language to ensure that the terms were clear and unambiguous.

The Fair Work Commission's decision was based on a detailed analysis of the evidence and legal arguments presented by both parties. The Commission concluded that the proposed agreement was in the best interests of the employees and provided for fair and reasonable terms and conditions of employment. The approval of the agreement was subject to the minor modifications outlined in the decision, which were intended to address specific concerns raised by the respondents. The final orders of the Commission approved the Embracia Aged Care Queensland Enterprise Agreement 2013-2016, with the specified modifications, and directed that the agreement be registered with the Fair Work Commission. This decision provided certainty and stability for the employees covered by the agreement and ensured that their employment terms and conditions were governed by a fair and reasonable agreement.

Embracia Communities Pty Ltd T/A Embracia in Glasshouse Country; Embracia Communities Pty Ltd T/A Embracia on the Avenue; Embracia Group Pty Ltd T/A Embracia on Bribie

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established