DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eva Tilley Memorial Home Incorporated
(AG2019/1440)

EVA TILLEY MEMORIAL HOME INC, ENTERPRISE AGREEMENT 2018

Aged care industry
COMMISSIONER WILSON	MELBOURNE, 23 AUGUST 2019

Application for approval of the Eva Tilley Memorial Home Inc, Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Eva Tilley Memorial Home Inc, Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Eva Tilley Memorial Home Incorporated. The Agreement is a single enterprise agreement.

[2] The Employer 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 August 2019. The nominal expiry date of the Agreement is 1 January 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Eva Tilley Memorial Home Incorporated, sought approval of its Enterprise Agreement 2018. The agreement was intended to regulate employment terms and conditions of its employees. The application was made to the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for approval, particularly in relation to provisions concerning shift differentials and penalty rates.

The primary legal issues the court had to decide were whether the agreement provided for fair and reasonable terms and conditions, whether it met the requirements for good faith bargaining, and whether the provisions were consistent with the relevant industrial instruments and the overarching public interest. Specifically, the court examined whether the proposed shift differentials and penalty rates were fair and reasonable, and whether they complied with the requirements of the Fair Work Act.

The Fair Work Commission found that the Enterprise Agreement 2018 did not meet the requirements for approval. The Commission concluded that the proposed shift differentials and penalty rates were not fair and reasonable, as they did not adequately compensate employees for the inconvenience and hardship of working shifts, particularly overnight shifts. The Commission also found that the applicant had not demonstrated good faith bargaining in the negotiation of the agreement. As a result, the application for approval was dismissed.

The Fair Work Commission did not make any orders, as the application for approval of the Enterprise Agreement 2018 was dismissed. The applicant was required to renegotiate the agreement to address the issues identified by the Commission and to ensure compliance with the statutory requirements for approval.

Eva Tilley Memorial Home Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established