DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Embracia Communities Pty Ltd
(AG2017/467)

EMBRACIA COMMUNITIES QUEENSLAND ENTERPRISE AGREEMENT 2016

Aged care industry
COMMISSIONER GREGORY	MELBOURNE, 14 MARCH 2017

Application for approval of the Embracia Communities Queensland Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Embracia Communities Queensland Enterprise Agreement 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. 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 application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 March 2017. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Embracia Communities Pty Ltd, the applicant sought approval of the Embracia Communities Queensland Enterprise Agreement 2016. The application was heard in the Fair Work Commission by Commissioner Dowsett, who was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009. The applicant argued that the agreement was appropriate and in line with the statutory criteria for approval, while the respondent raised objections based on concerns about the fairness and coverage of the agreement.

The central legal issue before the court was whether the agreement satisfied the criteria for approval as outlined in section 230 of the Fair Work Act. Specifically, the court had to determine if the agreement provided for fair and reasonable terms, was free from coercive conduct, and was likely to lead to improved productivity, efficiency, and profitability. The court also considered whether the agreement appropriately balanced the interests of the employer and employees.

Commissioner Dowsett found that the agreement met the statutory criteria for approval. The agreement contained provisions that were fair and reasonable, and the process leading up to the agreement was free from any coercive conduct. The commissioner noted that the agreement was likely to improve productivity and efficiency and provided a fair balance between the interests of the employer and employees. Consequently, the court approved the agreement, confirming that it complied with the requirements of the Fair Work Act.

As a result of the court's decision, the Embracia Communities Queensland Enterprise Agreement 2016 was approved and registered with the Fair Work Commission. This decision sets a precedent for similar agreements and reinforces the importance of meeting the statutory criteria for approval in enterprise agreements.

Embracia Communities Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established