Kwok Nominees Pty Ltd T/A Andrina Private Nursing Home

[2014] FWCA 4353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Kwok Nominees Pty Ltd T/A Andrina Private Nursing Home
(AG2014/6469)

KWOK NOMINEES PTY LTD (TRADING AS ANDRINA PRIVATE NURSING HOME), ANMF AND HSU ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 1 JULY 2014

Application for approval of the Kwok Nominees Pty Ltd (trading as Andrina Private Nursing Home) ANMF and HSU Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Application for approval of the Kwok Nominees Pty Ltd (trading as Andrina Private Nursing Home) ANMF and HSU 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 Kwok Nominees Pty Ltd T/A Andrina Private Nursing Home. The Agreement is a single-enterprise agreement.

[2] The application was not lodged within 14 days after the Agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] The Australian Nursing and Midwifery Federation (Victorian Branch) and the Health Services Union Victorian Branch T/A Health Workers 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), I note that the Agreement covers the organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 July 2014. The nominal expiry date of the Agreement is 30 September 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kwok Nominees Pty Ltd, trading as Andrina Private Nursing Home, applied to the Fair Work Commission for approval of the 2014 Enterprise Agreement with the Australian Nursing and Midwifery Federation and the Health Services Union. The applicants sought to have the agreement registered under the Fair Work Act 2009. The dispute arose from the applicants’ desire to formalise the employment terms of their staff through a legally binding enterprise agreement. The applicants argued that the proposed agreement was made in good faith and fairly represented the interests of the employees. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act and whether it was fair and reasonable in all its terms.

The legal issues before the Commission included whether the agreement was genuinely made by the parties in good faith, whether it was made without coercion, and whether it contained terms that were fair and reasonable. The Commission also had to consider whether the agreement included all the prescribed minimum terms and conditions of employment as required by the Act. Additionally, the Commission assessed whether the agreement had been properly certified by the relevant union representatives and whether it adhered to the procedural fairness requirements set out in the Fair Work Act.

In delivering its decision, the Commission found that the agreement was made in good faith and without any coercion. The Commission determined that the agreement contained all the prescribed minimum terms and conditions and that it was fair and reasonable in all its terms. The Commission also confirmed that the agreement had been properly certified and that all procedural fairness requirements had been met. The Commission concluded that the agreement should be approved and registered under the Fair Work Act.

The Fair Work Commission approved and registered the 2014 Enterprise Agreement between Kwok Nominees Pty Ltd (trading as Andrina Private Nursing Home) and the Australian Nursing and Midwifery Federation and the Health Services Union. The decision affirmed that the agreement met all legal requirements for approval, was made in good faith, and was fair and reasonable. The registration of the agreement ensures that the terms of employment for the staff at Andrina Private Nursing Home are legally binding and enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established