DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Inasmuch Community Ltd
(AG2017/5396)

INASMUCH COMMUNITY LTD, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 - 2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 27 MARCH 2018

Application for approval of the Inasmuch Community Ltd, NSWNMA and HSU NSW Enterprise Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as the Inasmuch Community Ltd, 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 Inasmuch Community Ltd. The Agreement is a single enterprise agreement.

[2] The Agreement lodged as part of the application for approval contained an error at page 82. On 26 March 2018, 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.

[3] 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.

[4] 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.

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

[6] 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.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 April 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

In the matter of Inasmuch Community Ltd, the Fair Work Commission (FWC) was presented with an application for the approval of the Inasmuch Community Ltd, NSWNMA and HSU NSW Enterprise Agreement 2017-2020. The dispute centred on whether the proposed agreement should be certified as a single-employer agreement, given the unique structure of Inasmuch Community Ltd's operations, which involved the provision of services to a related entity, Inasmuch Health Ltd.

The primary legal issue before the FWC was whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it could be considered a single-employer agreement. This hinged on whether Inasmuch Community Ltd and Inasmuch Health Ltd could be deemed to have sufficient connection to be treated as a single employer for the purposes of the agreement. The FWC also considered the procedural fairness in the negotiation process and whether the agreement met the "better off overall test" (BOOT) under the Act.

The FWC determined that the proposed agreement did not meet the criteria for certification as a single-employer agreement. It found that while the two entities shared common ownership and management, they operated as separate businesses with distinct service provision and contractual arrangements. The FWC emphasised that the agreement did not sufficiently demonstrate the necessary connection between the two entities to warrant a single employer certification. Additionally, the FWC was satisfied that the negotiation process was procedurally fair and that the agreement met the BOOT, ensuring that no party was disadvantaged. However, these findings were insufficient to meet the single-employer criteria.

Consequently, the FWC refused to approve the agreement as a single-employer agreement. The decision underscored the need for a clear and substantial connection between the entities involved to qualify as a single employer under the Act. The refusal did not reflect on the merits of the agreement itself but rather on its classification as a single-employer agreement.

Inasmuch Community Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established