DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Korlim Pty Ltd T/A Windermere Nursing Home
(AG2017/2734)

KORLIM PTY LTD, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER SAUNDERS	MELBOURNE, 6 SEPTEMBER 2017

Application for approval of the Korlim Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as Korlim Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Korlim Pty Ltd T/A Windermere Nursing Home.The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Korlim Pty Ltd, trading as Windermere Nursing Home, brought an application to the Federal Circuit Court for the approval of an enterprise agreement. The agreement, titled the Korlim Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017, was contested by a number of employees who raised concerns about the proposed changes to their working conditions.

The primary legal issues before the court were whether the enterprise agreement complied with the relevant provisions of the Fair Work Act 2009, and whether it was made in good faith and for the purpose of creating a workplace agreement. Specifically, the court needed to determine if the agreement met the statutory requirements for 'simplification' and 'flexibility', and whether it provided for procedural fairness in its negotiation and implementation. Furthermore, the court needed to assess whether any provisions in the agreement were contrary to public policy.

In delivering the judgment, the court held that the enterprise agreement was made in good faith and for the purpose of creating a workplace agreement. It found that the agreement did not contain any provisions that were contrary to public policy and that the bargaining process had been conducted fairly and in compliance with the statutory requirements. The court also determined that the agreement met the criteria for simplification and flexibility as outlined in the Fair Work Act. Consequently, the application for approval of the enterprise agreement was successful. The court approved the agreement, thereby enabling its implementation in accordance with the terms and conditions set out within.

Korlim Pty Ltd T/A Windermere Nursing Home

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established