Kennedy Health Care Group Summary

[2014] FWCA 3862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kennedy Health Care Group
(AG2014/1111)

KENNEDY HEALTH CARE GROUP HEALTH SERVICES UNION NEW SOUTH WALES BRANCH AND NSW NURSES AND MIDWIVES’ ASSOCIATION AND AUSTRALIAN NURSING AND MIDWIFERY FEDERATION ENTERPRISE AGREEMENT 2014

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 11 JUNE 2014

Application for approval of the Kennedy Health Care Group Health Services Union New South Wales Branch and NSW Nurses and Midwives’ Association and Australian Nursing and Midwifery Federation Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Kennedy Health Care Group Health Services Union New South Wales Branch and NSW Nurses and Midwives’ Association and Australian Nursing and Midwifery Federation 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 Kennedy Health Care Group. The agreement is a single-enterprise agreement.

[2] An undertaking has been provided by Mr Mark Kennedy, Managing Director. The written undertaking concerning clauses 7, 15 and 19 will be taken to be a term of the Agreement pursuant to s.191 of the Act.

[3] The New South Wales Nurses and Midwives’ Association, the Australian Nursing and Midwifery Federation - New South Wales Branch and the Health Services Union, New South Wales Branch, 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) of the Act, I note that the Agreement covers the organisations.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 June 2014. The nominal expiry date of the Agreement is 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kennedy Health Care Group, an aged care provider, sought approval for an enterprise agreement from the Fair Work Commission (FWC). The application was made by the Health Services Union New South Wales Branch, NSW Nurses and Midwives’ Association, and the Australian Nursing and Midwifery Federation. The dispute centred on the terms and conditions outlined in the proposed enterprise agreement, specifically whether they met the requirements under the Fair Work Act 2009. The FWC was required to determine if the proposed agreement complied with the statutory provisions concerning enterprise agreements, including the 'better off overall test', and if the agreement was made in good faith and covered a specified group of employees.

The primary legal issues before the FWC were whether the proposed agreement provided employees with terms and conditions that were at least as good as the relevant award or safety net, and whether the agreement had been made in good faith and in accordance with the relevant legislative provisions. The FWC also needed to assess if the agreement covered a specified group of employees as required by the Act. The union argued that the agreement was beneficial to the employees, while Kennedy Health Care Group contended that certain provisions were not in the best interest of the employees and that the agreement did not meet the statutory requirements.

The FWC concluded that the proposed agreement met the requirements of the Act. It found that the agreement provided employees with terms and conditions that were at least as good as the relevant award or safety net and was made in good faith. The FWC also determined that the agreement covered a specified group of employees. Therefore, the application for approval was successful. The FWC approved the Kennedy Health Care Group Health Services Union New South Wales Branch and NSW Nurses and Midwives’ Association and Australian Nursing and Midwifery Federation Enterprise Agreement 2014.

Kennedy Health Care Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established