DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McLean Care Ltd
(AG2017/6296)

MCLEAN CARE LTD (NSW), NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 - 2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 28 MARCH 2018

Application for approval of the McLean Care Ltd (NSW), NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the McLean Care Ltd (NSW), 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 McLean Care Ltd. 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 27 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 4 April 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, McLean Care Ltd, sought approval of the McLean Care Ltd (NSW), NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020, under section 232 of the Fair Work Act 2009. The matter was heard by the Full Bench of the Fair Work Commission. The application was opposed by a number of respondents, including the Minister for Education and the Minister for Industrial Relations. The applicants argued that the enterprise agreement should be certified as meeting the ‘better off overall test’ and as being a ‘simple, fair and forward-looking agreement’. The respondents argued that the enterprise agreement should not be certified, as it did not meet the ‘better off overall test’, and that the agreement was not simple, fair or forward-looking.

The Full Bench found that the enterprise agreement met the ‘better off overall test’ and that it was a ‘simple, fair and forward-looking agreement’. The Full Bench noted that the agreement contained provisions that were ‘necessary, appropriate and proportionate’ in the context of the enterprise. The Full Bench also found that the agreement was not overly complex, and that it was fair and forward-looking in nature. The Full Bench ultimately found that the enterprise agreement met the statutory requirements for certification.

The Full Bench certified the enterprise agreement, and made orders to that effect. The Full Bench further ordered that the enterprise agreement be published in the Commonwealth Register of Industrial Agreements. The Full Bench made no orders as to costs.

McLean Care Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established