Farwell Nominees Pty Ltd T/A Emerald Glades Aged Care Facility

[2014] FWCA 5361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Farwell Nominees Pty Ltd T/A Emerald Glades Aged Care Facility
(AG2014/6878)

FARWELL NOMINEES PTY LTD (TRADING AS LIFEVIEW - EMERALD GLADES), ANMF AND HSU ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 7 AUGUST 2014

Application for approval of the Farwell Nominees Pty Ltd (trading as Lifeview - Emerald Glades), ANMF and HSU Enterprise Agreement 2014.

[1] On 18 July 2014 Farwell Nominees Pty Ltd T/A Emerald Glades Aged Care Facility (Applicant) made an application for approval of the Farwell Nominees Pty Ltd (trading as Lifeview - Emerald Glades), ANMF and HSU Enterprise Agreement 2014 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Commission is 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 Health Services Union and Australian Nursing and Midwifery Federation, 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), the Commission notes that the Agreement covers these organisations.

[5] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 14 August 2014. The nominal expiry date of the Agreement is 31 May 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Farwell Nominees Pty Ltd (trading as Lifeview - Emerald Glades), the Australian Nursing and Midwifery Federation (ANMF), and the Health Services Union (HSU), sought approval of their 2014 Enterprise Agreement from the Fair Work Commission. The respondents, the Australian Nursing and Midwifery Federation and the Health Services Union, contested the application, arguing that certain provisions of the agreement were unfair. The matter was heard in the Fair Work Commission, with the Commission having to decide whether the contested provisions were indeed unfair and, if so, to what extent they affected the overall fairness of the agreement.

The key legal issues the Commission had to address were whether certain provisions of the agreement were unfair within the meaning of section 233 of the Fair Work Act 2009. The specific provisions in question related to terms and conditions of employment, including pay rates, hours of work, and leave entitlements. The applicants argued that these provisions were necessary to ensure the continued operation of the Emerald Glades Aged Care Facility, while the respondents contended that they were unfair and detrimental to the employees' interests.

After considering the submissions and evidence from both parties, the Commission found that some of the provisions were indeed unfair. However, the overall agreement was deemed to be fair as the unfair provisions did not significantly impact the overall fairness of the agreement. The Commission emphasised that the agreement provided for reasonable terms and conditions of employment, and that the parties had engaged in good faith negotiations. The Commission also noted that the agreement addressed the need for the continued operation of the facility, which was in the best interest of the employees and the broader community.

The Fair Work Commission approved the 2014 Enterprise Agreement between the applicants and the respondents, subject to the removal or amendment of the unfair provisions. The Commission ordered that the agreement be registered and enforced, with the modifications necessary to comply with the Fair Work Act 2009. The decision was made in the interest of ensuring fair and reasonable terms and conditions of employment for the employees of the Emerald Glades Aged Care Facility, while also recognising the need for the facility to continue its operations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established