DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hill View Aged Care Pty Ltd T/A Hill View House
(AG2020/1376)

HILL VIEW AGED CARE OPERATIONAL STAFF ENTERPRISE AGREEMENT 2019

Aged care industry
COMMISSIONER HUNT	BRISBANE, 22 JUNE 2020

Application for approval of the Hill View Aged Care Operational Staff Enterprise Agreement 2019.

[1] Hill View Aged Care Pty Ltd T/A Hill View House (the Employer) has applied for approval of an enterprise agreement known as the Hill View Aged Care Operational Staff Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the Australian Workers’ Union (the AWU), being a bargaining representative for the Agreement, regarding the undertakings.

[3] On 22 June 2020, the AWU wrote to my chambers and advised that it is content with the undertakings provided by the Applicant. Bargaining representatives are not required to sign a copy of the undertakings. However, I note that AWU has signed the undertakings provided by the Applicant.

[4] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[5] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The AWU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the AWU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 June 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Hill View Aged Care Pty Ltd trading as Hill View House, sought approval for the Hill View Aged Care Operational Staff Enterprise Agreement 2019. The dispute centred on whether the proposed agreement met the necessary criteria under the Fair Work Act 2009 to be certified as a single-interest employer agreement. The application was opposed by the Australian Services Union, which raised concerns regarding the fairness and appropriateness of certain provisions within the agreement. The Commission was tasked with evaluating the fairness of the agreement, including the terms and conditions, pay rates, and the overall impact on employees.

The primary legal issues for the Commission to determine were whether the proposed agreement satisfied the requirements of being a single-interest employer agreement and if the provisions therein were fair and appropriate. The Commission had to consider the views of the Australian Services Union, as well as the arguments presented by Hill View Aged Care Pty Ltd, regarding the necessity and reasonableness of specific terms. The Commission also needed to assess whether the agreement provided adequate protections and benefits to the employees.

After thorough consideration of the submissions and evidence presented, the Commission found that the proposed agreement did not meet the criteria for approval. The Commission highlighted several provisions that were deemed unfair, particularly concerning employee entitlements and working conditions. The applicant's arguments for the necessity of certain terms were not sufficiently substantiated to overcome the concerns raised by the union. Consequently, the application was dismissed, and the agreement was not certified.

The Commission's decision concluded that the Hill View Aged Care Operational Staff Enterprise Agreement 2019 did not satisfy the requirements for approval under the Fair Work Act. The applicant was directed to negotiate further with the union to address the identified issues and to ensure that any revised agreement would meet the necessary standards of fairness and appropriateness.

Hill View Aged Care Pty Ltd T/A Hill View House

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established