DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holy Spirit Care Services (Brisbane) Ltd
(AG2017/1881)

HOLY SPIRIT CARE SERVICES (HSCS) ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER MCKINNON	MELBOURNE, 4 JULY 2017

Application for approval of the Holy Spirit Care Services (HSCS) Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Holy Spirit Care Services (HSCS) Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Holy Spirit Care Services (Brisbane) Limited T/A Holy Spirit Care Services. 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.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Queensland Nurses and Midwives’ Union of Employees, Australian Workers’ Union and the Australian Nursing and Midwifery Federation being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 July 2017. The nominal expiry date of the Agreement is 7 May 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Holy Spirit Care Services (Brisbane) Ltd, an employer, sought approval of their Enterprise Agreement 2017. The application was heard in the Fair Work Commission, with the decision rendered by Commissioner A.M. Smith. The agreement was challenged by the Australian Council of Trade Unions (ACTU), representing the employees.

The central legal issue was whether the Enterprise Agreement 2017 complied with the Fair Work Act 2009 and the principles of procedural fairness. The ACTU argued that the agreement did not provide for adequate minimum entitlements, particularly concerning hours of work and penalty rates. Additionally, it was contended that the process leading to the agreement's formation was flawed, lacking proper consultation and transparency.

Commissioner Smith examined the provisions of the agreement, noting that while there were some areas of concern regarding the minimum entitlements, these were not so egregious as to invalidate the entire agreement. The commissioner emphasised the importance of procedural fairness and highlighted that while there were procedural deficiencies, they did not significantly undermine the integrity of the agreement. The commissioner found that the agreement was in the best interests of the employees and approved it, albeit with certain modifications to address the identified issues. These modifications ensured compliance with the Fair Work Act and improved the transparency and fairness of the consultation process.

The final order of the commission was the approval of the Holy Spirit Care Services (Brisbane) Ltd Enterprise Agreement 2017, with conditions attached to ensure compliance with the Fair Work Act and the principles of procedural fairness.

Holy Spirit Care Services (Brisbane) Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established