Italian Benevolent Foundation T/A Bene Aged Care

[2021] FWCA 7145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Italian Benevolent Foundation T/A Bene Aged Care
(AG2021/8688)

BENE AGED CARE NURSING EMPLOYEES ANMF (AGED CARE) ENTERPRISE AGREEMENT 2021

Aged care industry
COMMISSIONER YILMAZ	MELBOURNE, 16 DECEMBER 2021

Application for approval of the Bene Aged Care Nursing Employees ANMF (Aged Care) Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Bene Aged Care Nursing Employees ANMF (Aged Care) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Italian Benevolent Foundation T/A Bene Aged Care. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Australian Nursing and Midwifery Federation 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) I note that the Agreement covers the organisation.

[4] The Agreement is approved and in accordance with s.54, will operate from 23 December 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this matter were the Italian Benevolent Foundation, trading as Bene Aged Care, and the Australian Nursing and Midwifery Federation (Aged Care) branch. The dispute was centred on the approval of the Bene Aged Care Nursing Employees ANMF (Aged Care) Enterprise Agreement 2021. The decision was rendered by the Fair Work Commission of Australia. The legal issues before the court were whether the proposed enterprise agreement complied with the necessary statutory requirements and if it was made in good faith and without coercion. The court had to determine if the agreement met the standards of procedural fairness and if it contained all the prescribed terms as required by the Fair Work Act 2009.

The Fair Work Commission assessed the agreement's compliance with the legislative framework and scrutinised the bargaining process to ascertain if it was conducted in good faith. The Commission also evaluated whether the agreement contained all the prescribed terms and if it was made without any element of coercion. In its analysis, the Commission took into account the evidence provided by both parties, along with the legal principles that govern enterprise agreements. The court found that the agreement satisfied the statutory requirements and was made in good faith without any coercion. The Commission concluded that the proposed agreement met all the necessary criteria and was, therefore, eligible for approval.

Consequently, the Fair Work Commission approved the Bene Aged Care Nursing Employees ANMF (Aged Care) Enterprise Agreement 2021. The decision was made on the basis that the agreement complied with the legal requirements and was made in accordance with the principles of procedural fairness. The Commission found that the agreement contained all the prescribed terms and was not made under any duress or coercion. As a result, the agreement was approved, and it will now govern the employment conditions of the nursing staff at Bene Aged Care.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established