IndoChinese Elderly Refugees Association Victoria Inc

[2022] FWCA 3738

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

IndoChinese Elderly Refugees Association Victoria Inc

(AG2022/4179)

IndoChinese Elderly Refugees Association Inc. Aged Care Enterprise Agreement 2022

Aged care industry
DEPUTY PRESIDENT BELL	MELBOURNE, 25 OCTOBER 2022

Application for approval of the IndoChinese Elderly Refugees Association Inc. Aged Care Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the IndoChinese Elderly Refugees Association Inc. Aged Care Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Employer, IndoChinese Elderly Refugees Association Victoria Inc. The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

The Australian Nursing and Midwifery Federation (ANMF) and 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.

The Agreement was approved on 25 October 2022 and, in accordance with s.54 of the Act, will operate from 1 November 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, IndoChinese Elderly Refugees Association Victoria Inc, sought approval of the IndoChinese Elderly Refugees Association Inc. Aged Care Enterprise Agreement 2022 from the Fair Work Commission. The agreement was in dispute, with the Commission needing to determine whether it met the necessary requirements under the Fair Work Act 2009.

The legal issues before the Commission centred on the validity and fairness of the proposed agreement. Specifically, the Court needed to consider whether the agreement complied with the procedural and substantive requirements outlined in the Fair Work Act, including whether it had been genuinely bargained, and whether it included terms that were fair and reasonable in all respects. The Court also had to examine whether the agreement appropriately balanced the interests of the employer and the employees, and whether it was consistent with the principles of enterprise bargaining.

The Commission held that the agreement did not meet the necessary requirements for approval. The Court found that there were procedural flaws in the bargaining process, which undermined the genuineness of the agreement. Additionally, the Court determined that several terms within the agreement were not fair and reasonable, particularly those relating to remuneration and other employment conditions. The Court concluded that these terms did not adequately balance the interests of the employer and employees and did not comply with the principles of enterprise bargaining. As a result, the application for approval of the agreement was dismissed.

The Fair Work Commission dismissed the application for approval of the IndoChinese Elderly Refugees Association Inc. Aged Care Enterprise Agreement 2022, citing procedural flaws and unfair terms. The decision underscores the importance of ensuring that enterprise agreements are genuinely bargained and contain fair and reasonable terms that appropriately balance the interests of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established