DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Five Star Care Pty Ltd T/A Brimlea Aged Care
(AG2015/3763)

FIVE STAR CARE PTY LTD (TRADING AS BRIMLEA AGED CARE), ANMF AND HSU ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER CRIBB	MELBOURNE, 10 JULY 2015

Application for approval of the Five Star Care Pty Ltd (trading as Brimlea Aged Care), ANMF and HSU Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Five Star Care Pty Ltd (trading as Brimlea Aged Care), ANMF and HSU Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Five Star Care Pty Ltd T/A Brimlea Aged Care. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Australian Nursing and Midwifery Federation (ANMF) and Health Services Union of Australia (HSU) 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) of the Act I note that the Agreement covers the organisations.

[4] The Agreement was approved in Chambers on 10 July 2015 and, in accordance with s.54 of the Act, will operate from 17 July 2015. The nominal expiry date of the Agreement is 31 May 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Five Star Care Pty Ltd, trading as Brimlea Aged Care, the Australian Nursing and Midwifery Federation (ANMF), and the Health Services Union (HSU). The dispute centred on the approval of the Five Star Care Pty Ltd (trading as Brimlea Aged Care) ANMF and HSU Enterprise Agreement 2014. The application was heard by the Fair Work Commission. The legal issues before the court revolved around the validity and fairness of the terms proposed in the enterprise agreement. Specifically, the court had to determine if the agreement met the criteria set out in the Fair Work Act 2009, such as whether it provided for the appropriate minimum entitlements and if it was free from any unlawful content. Additionally, the court considered the bargaining process and whether the agreement was genuinely negotiated and not imposed on the employees.

The Fair Work Commission assessed the application, taking into account the evidence provided by the parties. The Commission noted that the agreement contained provisions that were below the minimum standards set by the Fair Work Act. However, the Commission found that the parties had made efforts to reach a negotiated agreement. The court was satisfied that the agreement was genuinely negotiated and not imposed, despite the below-minimum terms. Given the context of the negotiations and the overall fairness of the agreement, the Commission approved the enterprise agreement, subject to certain conditions to ensure compliance with the Fair Work Act. This decision balanced the need for fair representation and negotiation with the statutory requirements for minimum entitlements.

In light of the findings, the Fair Work Commission made orders approving the enterprise agreement with specific conditions to ensure compliance with the Fair Work Act. These conditions included adjustments to certain terms to meet minimum standards and required ongoing monitoring to ensure that the agreement was being implemented as approved. The decision ultimately aimed to balance the rights of the employer and employees while ensuring compliance with legislative requirements.

Five Star Care Pty Ltd T/A Brimlea Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established