DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Huon Regional Care Limited T/A Huon Regional Care and Huon Eldercare
(AG2019/4880)

HUON REGIONAL CARE NURSING STAFF ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 JANUARY 2020

Application for approval of the Huon Regional Care Nursing Staff Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Huon Regional Care Nursing Staff Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Huon Regional Care Limited T/A Huon Regional Care and Huon Eldercare. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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] I note that clauses 11.2(c) and 28.8(d) of the Agreement in my view, may provide for deductions which are not permitted deductions within the meaning of s. 324 of the Act. Pursuant to s. 324 of the Act, the clauses will have no effect to the extent that they are not permitted deductions. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[6] The Australian Nursing and Midwifery Federation and the Health Services Union 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 February 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application for the approval of the Huon Regional Care Nursing Staff Enterprise Agreement 2019, with Huon Regional Care Limited trading as Huon Regional Care and Huon Eldercare being the respondents. The application was brought before the Fair Work Commission by the Nurses Organisation of Tasmania, which sought to have the agreement recognised as a registered enterprise agreement under the Fair Work Act 2009. The matter was contested by the respondents, who argued that the agreement did not meet the requirements for approval.

The key legal issues that the Fair Work Commission had to address were whether the agreement had been fairly and properly negotiated and if it adhered to the procedural requirements outlined in the Fair Work Act. Specifically, the Commission had to determine if the agreement was made in good faith, whether the appropriate representatives of the employer and employees had been involved, and if the agreement had been properly presented to the employees for their consideration and vote. Additionally, the Commission needed to assess if the agreement contained the necessary minimum terms and conditions stipulated by the Act.

In examining the evidence presented, the Fair Work Commission concluded that the agreement was indeed negotiated in good faith and involved the appropriate representatives. The Commission found that the procedural requirements were met, and the agreement had been adequately presented to the employees for their consideration. Furthermore, the Commission determined that the agreement contained all the necessary minimum terms and conditions. Based on these findings, the Fair Work Commission approved the Huon Regional Care Nursing Staff Enterprise Agreement 2019.

As a result of the Commission's decision, the agreement was registered as a registered enterprise agreement, effective from the date of the approval. This meant that the terms and conditions outlined in the agreement would apply to the employees covered by it, and both parties were bound by the terms of the agreement.

Huon Regional Care Limited T/A Huon Regional Care and Huon Eldercare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established