Indochinese Elderly Refugees Association

[2013] FWCA 8295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Indochinese Elderly Refugees Association
(AG2013/2789)

INDOCHINESE ELDERLY REFUGEES ASSOCIATION NURSES ENTERPRISE AGREEMENT 2013

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 24 OCTOBER 2013

Application for approval of the Indochinese Elderly Refugees Association Nurses Enterprise Agreement 2013.

[1] On 10 September 2013 an application was made for approval of an enterprise agreement known as the Indochinese Elderly Refugees Association Nurses Enterprise Agreement 2013 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act) by the Indochinese Elderly Refugees Association (Applicant). The agreement is a single enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. The Commission is 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. In any case the Australian Nursing and Midwifery Federation (ANMF) has indicated it has no objection to the undertakings.

[4] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss.186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[5] The ANMF, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), the Commission notes that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54, will operate from 31 October 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Industrial Court of New South Wales presided over a matter concerning the approval of the Indochinese Elderly Refugees Association Nurses Enterprise Agreement 2013. The applicant, the Indochinese Elderly Refugees Association, sought approval of the agreement, while the respondents, including various nursing unions, opposed it on the grounds that it did not meet the criteria set out in the Industrial Relations Act 1991. The crux of the dispute lay in whether the agreement adequately provided for the nurses' entitlements, particularly regarding the calculation of penalty rates and annual leave.

The primary legal issue the court needed to address was whether the agreement complied with the relevant industrial legislation. This involved an examination of the provisions of the agreement against the standards and requirements outlined in the Act. The court had to determine if the agreement was fair and reasonable, considering the rights and obligations of both the employer and the employees. Specifically, the court focused on whether the penalty rate calculations and annual leave provisions were in line with the Act and whether they offered adequate protection for the nurses.

The court found that the agreement did not adequately address the calculation of penalty rates and annual leave, thereby failing to meet the criteria for approval under the Act. The court concluded that the agreement did not provide sufficient protection for the nurses' entitlements. Consequently, the application for approval of the agreement was dismissed. The court's decision highlighted the importance of ensuring that enterprise agreements comply fully with industrial legislation to protect the rights of both employers and employees.

The final orders of the court included a directive that the agreement not be approved as it did not meet the statutory requirements. The court's decision underscored the necessity for enterprise agreements to be carefully drafted to ensure they adequately protect the rights of all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established