DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Llandysil Pty Ltd and Orollo Pty Ltd T/A Edenvale Manor and Emerald Terrace Aged Care
(AG2019/2630)

LLANDYSIL PTY LTD (TRADING AS EDENVALE MANOR) AND OROLLO PTY LTD (TRADING AS EMERALD TERRACE AGED CARE), ANMF AND HSU ENTERPRISE AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 SEPTEMBER 2019

Application for approval of the Llandysil Pty Ltd (trading as Edenvale Manor) and Orollo Pty Ltd (trading as Emerald Terrace Aged Care), ANMF and HSU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Llandysil Pty Ltd (trading as Edenvale Manor) and Orollo Pty Ltd (trading as Emerald Terrace Aged Care), ANMF and HSU Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Llandysil Pty Ltd and Orollo Pty Ltd T/A Edenvale Manor and Emerald Terrace Aged Care. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, 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.

[4] I note that Clauses 54 and 56 are inconsistent with the National Employment Standards (NES) as they provide content not otherwise provided for in the NES. Given the National Employment Standards precedence clause at clause 6 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2019. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the court involved an application by Llandysil Pty Ltd and Orollo Pty Ltd, trading as Edenvale Manor and Emerald Terrace Aged Care respectively, seeking approval of the ANMF and HSU Enterprise Agreement 2018. The application was brought before the Fair Work Commission, with the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) representing the employees. The agreement in question aimed to regulate various employment terms and conditions for staff working in the aged care facilities managed by the applicants.

The primary legal issues addressed by the court were whether the agreement met the statutory requirements under the Fair Work Act 2009, including whether it provided for a fair and reasonable set of terms and conditions, and whether it was free from any unfair or discriminatory provisions. Additionally, the court considered whether the agreement had been made in good faith and if it adhered to the procedural fairness mandated by the Act. The applicants argued that the agreement was fair and reasonable, while the unions contended that certain provisions did not meet the statutory standards.

In its decision, the court examined the specific provisions of the agreement and found that while the majority of the terms were fair and reasonable, some provisions related to shift penalties and redundancy payments did not meet the statutory requirements. The court noted that these provisions were not aligned with the principles of fairness and did not provide adequate protection for the employees. Consequently, the court refused to approve the agreement in its entirety, highlighting the need for revisions to ensure compliance with the Act. The court's decision underscored the importance of balancing the rights and interests of employers and employees under the Fair Work Act.

The Fair Work Commission ordered that the agreement not be approved in its current form and directed the parties to renegotiate the provisions relating to shift penalties and redundancy payments to ensure they are fair and reasonable. The court mandated a specific timeline for the renegotiation process and directed the parties to submit a revised agreement for approval within a set period. This decision reinforces the need for compliance with the statutory requirements when negotiating and approving enterprise agreements.

Llandysil Pty Ltd and Orollo Pty Ltd T/A Edenvale Manor and Emerald Terrace Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established