DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Glenview Community Services Inc
(AG2020/1484)

GLENVIEW COMMUNITY SERVICES NURSING ENTERPRISE AGREEMENT 2020

Aged care industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 2 JULY 2020

Application for approval of the Glenview Community Services Nursing Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Glenview Community Services Nursing Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Glenview Community Services Inc. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Glenview Community Services Inc, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] The Health & Community Services Union, Tasmania Branch (HACSU) raised a concern in relation to the way in which Clause 14.4 of the Agreement may operate. I consider that Clause 7 of the Agreement, which provides that more beneficial entitlements of the National Employment Standards (NES) will apply to the extent of any inconsistency between a clause in the Agreement and the NES, addresses this concern and further, I am satisfied that the operation of Clause 14.4 does not raise an issue that would prevent me from being satisfied in relation to the better off overall test.

[4] Glenview Community Services Inc 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 a substantial change to the Agreement. The undertakings are taken to be terms of the Agreement.

[5] The Australian Nursing and Midwifery Federation, Tasmania Branch (ANMF) and HACSU, 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) and based on the statutory declarations provided by them, I note that the Agreement covers the ANMF and HACSU.

[6] The Agreement is approved and, in accordance with s.54, will operate from 9 July 2020. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Glenview Community Services Inc, the employer, applied to the Fair Work Commission for approval of the Glenview Community Services Nursing Enterprise Agreement 2020. The employees, represented by the Health Services Union of Australia, opposed the application. The dispute centred around the terms and conditions of the agreement, particularly concerning pay rates, leave entitlements, and the definition of certain work categories. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issues were whether the agreement provided for fair and reasonable terms and conditions, and if it adhered to the 'better off overall test' as required by the Act. The employer argued that the agreement was fair and reasonable, while the union contended that it did not adequately protect the employees' interests. The court had to examine the specific provisions of the agreement, including the pay rates and leave entitlements, and assess if they met the legislative standards for fairness.

The Fair Work Commission found that while most of the agreement's provisions were fair and reasonable, certain aspects concerning pay rates and leave entitlements did not meet the statutory requirements. The commission held that the agreement did not comply with the 'better off overall test' because it did not sufficiently protect the employees' interests. Consequently, the application for approval was dismissed. The commission ordered that the agreement could not be registered unless the disputed provisions were revised to meet the legal standards.

Glenview Community Services 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