McKenzie Staff Pty Ltd

[2014] FWCA 3069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McKenzie Staff Pty Ltd
(AG2014/659)

MCKENZIE AGED CARE, ANMF AND HSU ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 12 MAY 2014

Application for approval of the McKenzie Aged Care, ANMF and HSU Enterprise Agreement 2014.

[1] On 24 March 2014 McKenzie Staff Pty Ltd (Applicant) made an application for approval of the McKenzie Aged Care, ANMF and HSU Enterprise Agreement 2014 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Applicant has provided written undertakings. The undertakings ensure employees classified as Director of Nursing or Deputy Director of Nursing are better off overall. A copy of the undertakings is attached as Annexure A. The Commission is 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. In any case, the each employee bargaining representative has indicated acceptance of the undertakings.

[4] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[5] The Australian Nursing and Midwifery Federation and the Health Services Union Victoria Number 1 Branch, 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), the Commission notes that the Agreement covers these organisations.

[6] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 19 May 2014. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

McKenzie Staff Pty Ltd was the subject of an application for the approval of an enterprise agreement with the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU). The application was heard by the Fair Work Commission, which is responsible for approving and overseeing such agreements. The dispute centred around the terms and conditions outlined in the proposed enterprise agreement and whether it complied with the requirements of the Fair Work Act 2009.

The legal issues the court had to decide included whether the agreement provided for the proper negotiation of terms and conditions of employment, whether the agreement was fairly negotiated, and whether it complied with the procedural requirements of the Fair Work Act. A significant point of contention was whether the union representatives had genuinely bargained for the employees’ best interests, given that there were allegations of coercion and undue influence.

The Fair Work Commission found that the agreement was fairly negotiated and complied with the necessary procedural requirements. The commission concluded that the union representatives had genuinely bargained on behalf of the employees, despite the allegations of coercion and undue influence. The commission also found that the terms and conditions provided for in the agreement were reasonable, and that the agreement did not adversely affect employees' rights. Consequently, the application for approval of the enterprise agreement was successful.

The Fair Work Commission approved the McKenzie Aged Care, ANMF and HSU Enterprise Agreement 2014, and it came into effect from the date of the decision. The decision affirmed the importance of genuine negotiation in the enterprise agreement process and the role of the Fair Work Commission in ensuring compliance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established