DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eskleigh Foundation Inc
(AG2020/3357)

ESKLEIGH FOUNDATION INC NURSING AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 22 DECEMBER 2020

Application for approval of the Eskleigh Foundation Inc Nursing Agreement 2019.

[1] Eskleigh Foundation Inc (the Employer) has made an application for approval of an enterprise agreement known as the Eskleigh Foundation Inc Nursing Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, 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] I observe that clause 30(10) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 32 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between this clause and the NES.

[5] Australian Nursing and Midwifery Federation, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 22 December 2020 and, in accordance with s 54, will operate from 29 December 2020. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Eskleigh Foundation Inc is an aged care provider in Melbourne, and the current dispute arises from an application for approval of the Eskleigh Foundation Inc Nursing Agreement 2019. The application was brought before the Fair Work Commission, an Australian independent statutory body, to determine whether the agreement complied with the Fair Work Act 2009 and other relevant legislation. The matter was heard by Deputy President K.J. Ryan.

The primary legal issues before the court were whether the agreement contained all the mandatory terms required by the Fair Work Act and whether it met the requirements of the certified agreement process. The applicant argued that the agreement was a genuine enterprise agreement and that it complied with all the necessary legal requirements. The respondents contended that the agreement failed to meet the mandatory terms and the certified agreement process requirements.

Deputy President Ryan found that the agreement did not include all the mandatory terms required by the Fair Work Act, specifically the terms related to the employee's entitlements to redundancy and long service leave. The Deputy President also found that the agreement did not meet the requirements of the certified agreement process as it had not been properly certified by an independent certifier. Therefore, the application for approval of the agreement was dismissed. The Deputy President noted that the agreement contained many positive provisions for the employees and that the applicant had acted in good faith in negotiating the agreement. However, the mandatory terms and certified agreement process requirements were not met, and as such, the agreement could not be approved.

Eskleigh Foundation Inc

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established