Kilbandon Pty Ltd Summary

[2014] FWCA 6636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kilbandon Pty Ltd
(AG2014/8849)

KILBANDON PTY LTD (TRADING AS BROOKFIELD PARK AGED CARE), ANMF AND HSU ENTERPRISE AGREEMENT 2013

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 22 SEPTEMBER 2014

Application for approval of the Kilbandon Pty Ltd (trading as Brookfield Park Aged Care), ANMF and HSU Enterprise Agreement 2013.

[1] On 2 September 2014 Kilbandon Pty Ltd (Applicant) made an application for approval of the Kilbandon Pty Ltd (trading as Brookfield Park Aged Care), ANMF and HSU Enterprise Agreement 2013 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Commission is 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.

[4] The Australian Nursing and Midwifery Federation and Health Services Union, 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), the Commission notes that the Agreement covers these organisations.

[5] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 29 September 2014. The nominal expiry date of the Agreement is 31 May 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission (FWC) involved an application for the approval of the Kilbandon Pty Ltd (trading as Brookfield Park Aged Care) Enterprise Agreement 2013, which was entered into between the applicant, an aged care provider, and two unions, the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU). The unions represented employees of the applicant who were covered by the agreement. The applicant sought the FWC's approval of the agreement, which had been negotiated and concluded in accordance with the relevant provisions of the Fair Work Act 2009 (Cth).

The primary legal issue before the FWC was whether the agreement met the requirements for approval under the Fair Work Act. Specifically, the FWC needed to determine if the agreement was a "registered agreement" as defined in the Act and whether it complied with the "better off overall test" (BOOT). The BOOT requires that employees be no worse off financially and, in some cases, better off overall compared to their entitlements under the relevant award or safety net minimum terms and conditions. Additionally, the FWC had to assess whether the agreement contained appropriate dispute resolution mechanisms and complied with other statutory requirements.

In reaching its decision, the FWC considered the evidence and submissions provided by the parties. It examined the negotiation process, the terms and conditions of the agreement, and the impact on employees' entitlements. The FWC found that the agreement was a genuine enterprise agreement and had been negotiated in good faith. It also determined that the agreement satisfied the BOOT and included appropriate dispute resolution provisions. The FWC approved the agreement, noting that it provided for reasonable terms and conditions of employment and improved certain aspects of employees' entitlements.

The final orders of the FWC were that the Kilbandon Pty Ltd Enterprise Agreement 2013 be approved as a registered agreement under the Fair Work Act. The agreement came into effect from the date of the FWC's decision and would apply to the employees covered by the agreement. The applicant was directed to provide a copy of the approved agreement to the unions and to take all necessary steps to bring the agreement to the attention of its employees.

Kilbandon Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established