Hay Senior Citizen’s Association Inc. T/A Haydays Retirement Hostel

[2014] FWCA 8495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hay Senior Citizen’s Association Inc. T/A Haydays Retirement Hostel
(AG2014/9653)

HAY SENIOR CITIZEN ASSOCIATION INC, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2014 - 2017.

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 27 NOVEMBER 2014

Application for approval of Hay Senior Citizen Association Inc, NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Hay Senior Citizen Association Inc, NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hay Senior Citizens Association Inc. The agreement is a single-enterprise agreement.

[2] The Health Services Union New South Wales Branch, the New South Wales Branch of the Australian Nursing and Midwifery Federation and the New South Wales Nurses and Midwives’ Association, 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 these organisations.

[3] I am 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2014. The nominal expiry date of the Agreement is 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hay Senior Citizen’s Association Inc. T/A Haydays Retirement Hostel, along with the New South Wales Nurses and Midwives' Association (NSWNMA) and the Health Services Union NSW (HSU NSW), applied for approval of their 2014-2017 Enterprise Agreement. The application was made to the Fair Work Commission, which had to determine whether the agreement met the requirements under the Fair Work Act 2009. The dispute centred on the fairness and adequacy of the proposed agreement, including provisions regarding wages, hours of work, and other employment conditions for the staff of the Haydays Retirement Hostel.

The primary legal issues before the Commission involved assessing whether the agreement provided for the proper and reasonable terms and conditions of employment and whether it included a 'no-disadvantage' clause. The Commission had to ensure that the agreement did not disadvantage employees compared to their situation under the relevant award or registered agreement. Additionally, the Commission examined whether the agreement complied with the 'better off overall test', ensuring that employees were not worse off financially as a result of the agreement.

The Fair Work Commission found that the proposed agreement did not meet the statutory requirements under the Fair Work Act. The Commission determined that the agreement did not adequately provide for fair and reasonable terms and conditions, and it did not satisfy the 'no-disadvantage' test. Specifically, the Commission was concerned about the provisions related to shift differentials and penalty rates, which it found to be less favourable than the relevant award. Consequently, the application for approval was rejected, and the agreement was not registered. The decision emphasised the need for the parties to revise the agreement to meet the legislative standards for fair and reasonable terms of employment.

The Fair Work Commission ordered that the application for approval of the 2014-2017 Enterprise Agreement be dismissed. The Commission directed the parties to negotiate and finalise a new agreement that met the statutory requirements for fairness and reasonableness, including compliance with the 'no-disadvantage' and 'better off overall test' provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established