DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Homewood Care Pty Ltd T/A Homewood Care
(AG2017/2843)

HOMEWOOD CARE PTY LTD, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 8 SEPTEMBER 2017

Application for approval of the Homewood Care Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Homewood Care Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch 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 Homewood Care Pty Ltd T/A Homewood Care.The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, 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.

[6] 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.

[7] The Australian Nursing and Midwifery Federation, New South Wales Nurses and Midwives’ Association and Health Services Union of Australia 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) I note that the Agreement covers the organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 September 2017. 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 involves an application for the approval of an enterprise agreement between Homewood Care Pty Ltd and various unions, namely the NSW Nurses and Midwives Association, the Australian Nursing and Midwifery Federation NSW Branch, and the Health Services Union New South Wales Branch. The application was brought before the Fair Work Commission. The primary dispute centres on the terms and conditions of employment as outlined in the proposed enterprise agreement and the rights and obligations of both the employer and the unions.

The central legal issues the court had to address were whether the agreement met the statutory requirements under the Fair Work Act 2009, particularly whether it was a "better off overall test" agreement, and if it complied with procedural requirements. The court needed to determine if the agreement was fairly negotiated, if it provided for genuine terms and conditions, and if it met the procedural requirements for approval. Additionally, the court examined whether the agreement complied with the minimum terms set out in the Fair Work Act and whether it was consistent with the Fair Work (Registered Organisations) Act 2009.

The Fair Work Commission, in its decision, found that the enterprise agreement was fairly negotiated and met the better off overall test. The court held that the agreement provided for fair terms and conditions of employment and complied with the procedural requirements for approval. The Commission noted that the agreement was consistent with the minimum terms and conditions provided for under the Fair Work Act. Furthermore, the court determined that the agreement was not inconsistent with the provisions of the Fair Work (Registered Organisations) Act. Consequently, the application for the approval of the enterprise agreement was successful.

The Fair Work Commission approved the Homewood Care Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017, effective from the date of the decision. The agreement is now a legally binding enterprise agreement between the parties, governing the terms and conditions of employment for the employees covered by the agreement.

Homewood Care Pty Ltd T/A Homewood Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established