Illawarra Diggers Aged & Community Care Limited T/A Illawarra Diggers Aged & Community Care

[2018] FWCA 303 [Note: a further decision has been issued to this document]

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Illawarra Diggers Aged & Community Care Limited T/A Illawarra Diggers Aged & Community Care

(AG2017/4551)

Illawarra Diggers, NSWNMA and HSU NSW Enterprise Agreement 2017-2020

Aged care industry
Commissioner Saunders	NEWCASTLE, 16 JANUARY 2018

Application for approval of the Illawarra Diggers, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

An application has been made for approval of an enterprise agreement known as the Illawarra Diggers, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Illawarra Diggers Aged & Community Care Ltd T/A Illawarra Diggers Aged & Community Care. The Agreement is a single enterprise agreement.

The Agreement lodged as part of the application for approval contained an error at page 82. On 6 December 2017, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act, correcting the error at page 82. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

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.

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.

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

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.

The Australian Nursing and Midwifery Federation and the 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 January 2018. 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

Illawarra Diggers Aged & Community Care Limited, trading as Illawarra Diggers Aged & Community Care, applied to the Fair Work Commission for the approval of an enterprise agreement, the Illawarra Diggers, NSWNMA and HSU NSW Enterprise Agreement 2017-2020. The application involved a dispute between the applicant and the NSW Nurses and Midwives' Association (NSWNMA) and Health Services Union (HSU NSW), representing the employees. The Fair Work Commission, with its authorisation powers under section 232 of the Fair Work Act 2009, assessed the agreement's compliance with the Act, including its "no disadvantage" test, as well as the "better off overall test" under section 230 of the Act.

The primary legal issues the Commission needed to decide were whether the proposed agreement met the "no disadvantage" test and the "better off overall test." The "no disadvantage" test required the Commission to determine if the agreement would cause any employee to be worse off than they would be under the relevant award or safety net award. The "better off overall test" required the Commission to assess if the agreement would provide employees with a better overall package of pay and conditions than they would have under the safety net award.

The Commission found that the proposed agreement did not disadvantage any employee and met the "no disadvantage" test. Furthermore, the Commission was satisfied that the agreement provided a better overall package of pay and conditions to the employees compared to the safety net award, thus satisfying the "better off overall test." The Commission approved the Illawarra Diggers, NSWNMA and HSU NSW Enterprise Agreement 2017-2020, making it a legally binding agreement between the parties.

The Fair Work Commission's decision in this case highlights the importance of ensuring that enterprise agreements meet the statutory requirements for approval and that they provide a fair and better overall package of pay and conditions for employees. The Commission's approval of the agreement in this case demonstrates its commitment to facilitating fair and effective enterprise bargaining processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established