DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Indochinese Aged Care Limited T/A Indochinese Aged Care Services
(AG2017/4549)

INDOCHINESE AGED CARE SERVICES, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017-2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 23 FEBRUARY 2018

Application for approval of the Indochinese Aged Care Services, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Indochinese Aged Care Services, 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 Indochinese Aged Care Limited T/A Indochinese Aged Care Services. 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 15 February 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 2 March 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 Fair Work Commission, the parties involved in the dispute were Indochinese Aged Care Limited, trading as Indochinese Aged Care Services, and the Health Services Union NSW. The central issue was the approval of the Indochinese Aged Care Services, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020. The Health Services Union sought approval of the agreement, while Indochinese Aged Care Services raised objections to certain provisions, arguing they were not fair and reasonable.

The primary legal questions before the Commission were whether the provisions of the proposed agreement complied with the Fair Work Act 2009 and whether they were fair and reasonable in all the circumstances. Specific concerns raised by Indochinese Aged Care Services included the application of the agreement to employees who were not union members and the potential impact of certain clauses on operational flexibility. The Commission needed to balance the rights of the employees, as represented by the union, with the legitimate interests of the employer in managing its business.

After considering the arguments and evidence presented by both parties, the Commission found that the majority of the agreement's provisions were fair and reasonable. The Commission noted that the agreement provided for appropriate protections and benefits for employees while allowing for necessary operational flexibility for the employer. The Commission did, however, make some minor adjustments to certain clauses to ensure they met the statutory requirements for fairness and reasonableness. Ultimately, the Commission approved the agreement subject to the modifications.

The final orders of the Commission included the approval of the Indochinese Aged Care Services, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020, with the specified modifications. The agreement was to be registered by the Registrar of the Fair Work Commission and would come into effect on the date of registration. Both parties were directed to comply with the terms of the approved agreement.

Indochinese Aged Care Limited T/A Indochinese Aged Care Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established