KOPWA Limited

[2024] FWCA 1812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

KOPWA Limited

(AG2024/1016)

KOPWA LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 17 MAY 2024

Application for approval of the KOPWA Limited, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the KOPWA Limited, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by KOPWA Limited (Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by KOPWA Limited, the NSW Nurses and Midwives' Association (NSWNMA), and the Health Services Union of Australia (HSU NSW) for approval of their 2023 Enterprise Agreement. The application was made under the Fair Work Act 2009, seeking the Commission's endorsement of the terms and conditions of employment outlined in the agreement. The Commission was tasked with determining whether the agreement met the legal requirements for approval, including compliance with the Act and the Fair Work Regulations 2009.

The primary legal issues before the Commission were whether the agreement complied with the provisions of the Fair Work Act and Regulations, and if the agreement was made in good faith and without coercion. Specifically, the Commission examined the agreement's provisions on wages, conditions, and dispute resolution, ensuring they met the legal standards for fairness and reasonableness. Additionally, the Commission considered the processes followed in negotiating the agreement to ascertain whether it was made in good faith and without undue influence or coercion.

In delivering its decision, the Commission found that the Enterprise Agreement was compliant with the relevant legislative requirements and met the standards for approval. The Commission highlighted that the agreement provided for fair and reasonable terms and conditions, including provisions for wage increases, working conditions, and dispute resolution mechanisms. The Commission also noted that the negotiation process was conducted in good faith, with no evidence of coercion or undue influence. Based on these findings, the Commission approved the Enterprise Agreement, recognising it as a fair and reasonable agreement that met the statutory criteria for approval.

As a result of the Commission's approval, the KOPWA Limited, NSWNMA, and HSU NSW Enterprise Agreement 2023 was endorsed and came into effect on the specified date. The Commission's decision affirmed the agreement's validity and provided clarity for the parties involved, ensuring that the terms and conditions of employment were legally recognised and enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established