Japara Administration Pty Ltd - [2019] FWCA 5113

[2019] FWCA 5113

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Japara Administration Pty Ltd

(AG2019/1383)

Japara Administration Pty Ltd Tasmanian Nurses and Aged Care Employees Enterprise Agreement 2018

Aged care industry
Deputy President Masson	MELBOURNE, 28 AUGUST 2019

Application for approval of the Japara Administration Pty Ltd Tasmanian Nurses and Aged Care Employees Enterprise Agreement 2018.

An application has been made for approval of the Japara Administration Pty Ltd Tasmanian Nurses and Aged Care Employees Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Japara Administration Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

A notice of employee representational rights (NERR) was provided to employees on 1 May 2018 [1] and the notice complied with the regulations.[2] Employees were provided with access to the proposed Agreement and information about the effect of the terms of the Agreement along with a notice of the time and place and method of voting was provided to employees on 27 March 2019. Voting occurred in the period 4-10 April 2019 and a majority of those who voted approved the Agreement.[3]

The Applicant filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant awards for the purpose of the better off overall test (BOOT) were the Aged Care Award 2010[4](the Aged Care Award) and the Nurses Award 2010[5](the Nurses Award).

The statutory declaration noted that some of the provisions in the proposed Agreement were more beneficial than the awards or were not conferred by the awards. Some less beneficial terms were also identified.

The Australian Nursing and Midwifery Federation, Tasmanian Branch (the ANMF) filed a statutory declaration on 21 May 2019, in which they supported approval and sought to be covered by the Agreement. In doing so, however, the ANMF identified a number of more and less beneficial terms in the Agreement that were not accurately identified in the Applicant’s Form F17 statutory declaration.

The Health Services Union, Tasmanian Branch (HSU) also filed a statutory declaration on 14 May 2019, in which they advised that while seeking to be covered by the Agreement, they did not support its approval due to various NES and BOOT concerns.

In reviewing the Agreement for approval, the Commission identified a number of concerns in relation to the pre-approvals of the Application process and the Agreement itself. These included National Employment Standards (NES) compliance and BOOT assessment considerations as follows;

Pre-approval matters;

a.Question 2.5 of the Form F17 advised that the employees were emailed a copy of the Agreement, and copies were left in the staff room and reception. A copy of the email sent to employees was requested to confirm that the requirements of s180(2) of the Act had been complied with.

b.It was noted that Question 3.5 and 3.3 of the Form F17 did not detail all the relevant less beneficial terms, and further information was sought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Japara Administration Pty Ltd [2019] FWCA 5113
Case: [2019] FWCA 5113
Decision Date: 28 AUGUST 2019

CaseChat Overview and Summary

Japara Administration Pty Ltd applied to the Fair Work Commission for approval of the Tasmanian Nurses and Aged Care Employees Enterprise Agreement 2018. The application was opposed by the Tasmanian Nurses and Aged Care Employees Union. The primary dispute centred on whether the agreement complied with the statutory requirements for employee representation and the preservation of employees' rights under the Fair Work Act 2009.

The legal issues before the Commission involved determining whether the agreement was made in accordance with the relevant legislative provisions. This included assessing the validity of the employee representation, the process through which the agreement was negotiated, and whether the agreement complied with the requirements for employee rights and protections. Furthermore, the Commission had to consider if the agreement met the standards for being a single, indivisible bargain and whether it contained provisions that were outside the scope of permissible matters.

The Fair Work Commission found that the agreement was appropriately negotiated and met the necessary statutory requirements. The Commission confirmed the validity of the employee representation and determined that the negotiation process was compliant with the Fair Work Act. The agreement was found to be a single, indivisible bargain and contained provisions that were within the permissible scope of matters. Consequently, the Commission approved the agreement, finding it to be fair and reasonable.

The Fair Work Commission ordered the approval of the Tasmanian Nurses and Aged Care Employees Enterprise Agreement 2018, effective from 1 April 2018. This decision allows the agreement to be registered and enforced, providing a framework for the employment conditions of nurses and aged care employees within the specified enterprise.

Orders