DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MECWA T/A Mecwacare
(AG2018/5672)

MECWA (TRADING AS MECWACARE), ANMF AND HSU ENTERPRISE AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 MARCH 2019

Application for approval of the MECWA (trading as mecwacare), ANMF and HSU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the MECWA (trading as mecwacare), 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 MECWA T/A Mecwacare. 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.

[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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I note that Clauses 54 and 37 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] The Australian Nursing and Midwifery Federation and 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 these organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2019. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

MECWA T/A Mecwacare was the subject of an application before the Fair Work Commission, where the primary dispute concerned the approval of the MECWA (trading as mecwacare), ANMF and HSU Enterprise Agreement 2018. This agreement was a collective bargaining tool between the employer and the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU), intended to govern the terms and conditions of employment for workers in the sector.

The central legal issues the Commission had to address were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This included assessing whether the agreement was made in good faith and whether it contained the necessary minimum terms and conditions as mandated by the Act. The Commission also needed to consider whether the process by which the agreement was made was fair and transparent, and if it allowed for appropriate employee representation and consultation.

The Commission found that the agreement was indeed made in good faith and contained the required minimum terms. It concluded that the process for negotiating and finalising the agreement was fair and transparent, and that the employees were adequately represented and consulted throughout the process. As a result, the Commission approved the MECWA (trading as mecwacare), ANMF and HSU Enterprise Agreement 2018, deeming it compliant with the statutory requirements. The decision underscored the importance of fair and genuine collective bargaining processes in achieving compliant enterprise agreements.

MECWA T/A Mecwacare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established