Justor Pty Limited T/A Newcastle & District Nursing Services (NDNS)

[2014] FWCA 3646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Justor Pty Limited T/A Newcastle & District Nursing Services (NDNS)
(AG2014/871)

NDNS ENTERPRISE AGREEMENT 2014

Social, community, home care and disability services
DEPUTY PRESIDENT BOOTH	SYDNEY, 2 JUNE 2014

Application for approval of the NDNS Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the NDNS Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Justor Pty Limited T/A Newcastle & District Nursing Services (NDNS). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Agreement does contain a flexibility term, however, it is not a flexibility term which complies with s.202(1) of the Act. I note that the model flexibility term is taken, pursuant to s.202(4) of the Act, to be a term of the Agreement.

[4] The Agreement does contain a consultation term, however, it is not a consultation term which complies with s.205(1) of the Act. I note that the model consultation term is taken, pursuant to s.205(2) of the Act, to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 June 2014. The nominal expiry date of the Agreement is 2 June 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Justor Pty Limited trading as Newcastle & District Nursing Services (NDNS) for the approval of the NDNS Enterprise Agreement 2014. The application was contested by the Nurses Organisation of New South Wales (NONSW) on behalf of their members who were employed by NDNS. The primary dispute centred around the terms and conditions of employment outlined in the proposed enterprise agreement, with the NONSW arguing that certain provisions were not fair and reasonable.

The central legal issues the Commission was required to address included whether the proposed agreement complied with the requirements of the Fair Work Act 2009, specifically concerning the provisions related to employment terms, conditions of work, and the process for resolving disputes. Additionally, the Commission needed to consider whether the agreement adequately protected the rights and interests of the employees, particularly regarding wages, leave entitlements, and procedural fairness.

In its decision, the Commission emphasised the need for the enterprise agreement to meet the statutory criteria for approval, including ensuring that it did not adversely affect the employees' conditions of employment. The Commission examined each contested clause in detail, assessing whether they aligned with contemporary industrial standards and provided adequate protections for the workforce. Ultimately, the Commission found that the NDNS Enterprise Agreement 2014, with certain modifications, met the requirements for approval under the Fair Work Act. The modifications included adjustments to the provisions on shift penalties and rostering to ensure they were fair and reasonable. The Commission approved the agreement subject to these changes, ensuring that the rights and interests of the employees were appropriately safeguarded.

Following the approval, the Commission issued orders requiring NDNS to implement the modified agreement. The NONSW was granted leave to appeal the decision, allowing them to seek further review if they believed the modifications did not adequately address their concerns. The final orders mandated that the modified agreement be put into effect, reflecting the Commission's determination that it was fair and reasonable within the framework of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established