DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mackellar Care Services Limited
(AG2017/4818)

THE MACKELLAR CARE SERVICES LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017-2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 22 MARCH 2018

Application for approval of The Mackellar Care Services Limited, NSWNMA and HSU NSW Enterprise Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as The Mackellar Care Services Limited, NSWNMA and HSU NSW Enterprise Agreement 2017-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mackellar Care Services Limited. The Agreement is a single enterprise agreement.

[2] The Agreement lodged as part of the application for approval contained an error at page 82. On 21 March 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act, correcting the error at page 82. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[3] 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.

[4] 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.

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

[6] 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.

[7] The Australian Nursing and Midwifery Federation and the 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 29 March 2018. 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

The applicant, Mackellar Care Services Limited, along with the NSW Nurses and Midwives’ Association (NSWNMA) and the Health Services Union NSW (HSU NSW), applied to the Fair Work Commission (FWC) for approval of their Enterprise Agreement 2017-2020. The application was brought under the Fair Work Act 2009, specifically section 233, which allows for the direct approval of an enterprise agreement if it meets certain criteria, including that it provides for the "best outcome" for the employees involved. The application was opposed by a group of employees, who raised concerns about various provisions in the proposed agreement.

The primary legal issues before the Commission were whether the proposed agreement met the statutory requirements for approval, including whether it provided for the "best outcome" for the employees and whether it was procedurally fair. The employees argued that the agreement did not adequately address issues such as pay rates, shift penalties, and the availability of flexible work arrangements. They contended that the proposed agreement did not provide for the best outcome for them and was not the product of genuine bargaining.

The Commission found that the proposed agreement met the statutory requirements for direct approval. It determined that the agreement provided for the best outcome for the employees, taking into account the interests of both the employees and the employer. The Commission noted that the agreement contained provisions that addressed the employees' concerns, including pay rates, shift penalties, and flexible work arrangements. The Commission also found that the agreement was the product of genuine bargaining, as it had been negotiated between the parties with a genuine intention to reach an agreement. Based on these findings, the Commission approved the proposed Enterprise Agreement 2017-2020.

The Fair Work Commission approved the Enterprise Agreement 2017-2020 between Mackellar Care Services Limited, the NSWNMA, and the HSU NSW. The Commission found that the agreement met the statutory requirements for direct approval, provided for the best outcome for the employees, and was the product of genuine bargaining. The agreement will now be in force and will govern the employment conditions of the employees covered by the agreement.

Mackellar Care Services Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established