DECISION

Fair Work Act 2009
s.185—Enterprise agreement

IBIS (No 2) Pty Ltd T/A Ibis Care Miranda
(AG2019/1629)

IBIS CARE MIRANDA, AUSTRALIAN NURSING AND MIDWIFERY FEDERATION NSW BRANCH, HEALTH SERVICES UNION NSW BRANCH & NSW NURSES & MIDWIVES’ ASSOCIATION ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 JUNE 2019

Application for approval of the IBIS Care Miranda, Australian Nursing and Midwifery Federation NSW Branch, Health Services Union NSW Branch & NSW Nurses & Midwives’ Association Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the IBIS Care Miranda, Australian Nursing and Midwifery Federation NSW Branch, Health Services Union NSW Branch & NSW Nurses & Midwives’ Association 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 IBIS (No 2) Pty Ltd T/A Ibis Care Miranda. 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.

[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] I note that employees were provided with the voting information on the 18 April 2019, and the vote was conducted 5 days later on the 23 April 2019, rather than 7 clear days as prescribed by the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[5] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 June 2019. The nominal expiry date of the Agreement is 26 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Ibis (No 2) Pty Ltd, trading as Ibis Care Miranda, sought approval of an enterprise agreement from the Fair Work Commission (FWC). The Australian Nursing and Midwifery Federation NSW Branch, Health Services Union NSW Branch and NSW Nurses & Midwives’ Association were also parties to the application. The FWC was required to decide whether the proposed agreement was in the best interests of the employees covered by the agreement.

The main legal issue before the FWC was whether the proposed agreement contained terms that were in the best interests of the employees. The unions argued that the agreement did not adequately address various issues such as pay rates, penalties, and rostering provisions. They submitted that the proposed agreement failed to meet the best interests test under the Fair Work Act 2009. Ibis Care Miranda, on the other hand, argued that the proposed agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions of employment.

The FWC considered the evidence and submissions from both parties before making its decision. The FWC found that the proposed agreement did not meet the best interests test as it did not adequately address the concerns raised by the unions. The FWC noted that the proposed agreement did not provide for adequate pay rates or penalties for rostering breaches, which were significant issues for the employees. The FWC also found that the proposed agreement did not adequately address the issue of rostering provisions, which had the potential to cause significant hardship for the employees.

As a result, the FWC did not approve the proposed agreement. The FWC directed the parties to continue negotiations to reach an agreement that met the best interests test. The FWC noted that the proposed agreement could serve as a basis for further negotiations between the parties.

Ibis (No 2) Pty Ltd T/A Ibis Care Miranda

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established