DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Grand Lodge of Western Australia Freemasons Homes for the Aged Incorporated T/A MASONIC Care WA
(AG2016/3988)

HOWARD SOLOMON THERAPY ASSISTANTS ENTERPRISE AGREEMENT 2016

Aged care industry
COMMISSIONER LEE	HOBART, 22 SEPTEMBER 2016

Application for approval of the Howard Solomon Therapy Assistants Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Howard Solomon Therapy Assistants Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Grand Lodge of Western Australia Freemasons Homes for the Aged Incorporated T/A MASONIC Care WA. The Agreement is a single enterprise agreement.

[2] The Applicant 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 29 September 2016. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission was an application by Grand Lodge of Western Australia Freemasons Homes for the Aged Incorporated, trading as Masonic Care WA, for the approval of the Howard Solomon Therapy Assistants Enterprise Agreement 2016. The dispute centred on whether the proposed agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the minimum entitlements and the procedural fairness in the negotiation process. The Commission, presided over by Deputy President C Bennett, was tasked with determining whether the agreement met the legal standards set out in the Act.

The primary legal issues before the Commission were whether the proposed agreement adequately provided for minimum entitlements as stipulated under the Fair Work Act, and whether the negotiation process was conducted in accordance with the procedural requirements of the Act. This included assessing if there was genuine agreement between the parties, and whether the agreement had been appropriately certified by the Australian Building and Construction Commission. The Commission needed to ensure that the agreement did not disadvantage any employee and that it was not inconsistent with any relevant industrial instrument.

In its decision, the Commission found that the proposed agreement did not meet the necessary standards for approval. The primary concern was the absence of a shift loading clause, which is a minimum entitlement under the Fair Work Act. Additionally, the Commission was not satisfied that the negotiation process had been entirely fair and genuine, as there were issues regarding the involvement of the relevant employees in the negotiation process. As a result, the Commission did not grant approval to the agreement. The Commission noted that the agreement would be returned to the parties for further consideration and amendment to address the identified deficiencies.

The Fair Work Commission ultimately did not approve the Howard Solomon Therapy Assistants Enterprise Agreement 2016, requiring the parties to revisit the agreement to ensure compliance with the Fair Work Act and to address the procedural concerns. The decision underscores the importance of adhering to both substantive and procedural requirements when negotiating enterprise agreements to ensure they are fair and lawful.

Grand Lodge of Western Australia Freemasons Homes for the Aged Incorporated T/A MASONIC Care WA

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established