Medea Park Association Incorporated T/A Medea Park Residential Care

[2022] FWCA 3166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Medea Park Association Incorporated T/A Medea Park Residential Care

(AG2022/3352)

Aged care industry
COMMISSIONER P RYAN	SYDNEY, 12 SEPTEMBER 2022

Application for approval of the Medea Park Association Incorporated General Staff Enterprise Agreement 2021

On 10 August 2022, Medea Park Association Incorporated (Employer) made an application for approval of an enterprise agreement known as the Medea Park Association Incorporated General Staff Enterprise Agreement 2021 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Late Lodgement

Section 185(3) of the FW Act states that an application for approval of an enterprise agreement must be made ‘within 14 days after the agreement is made’, or if in all the circumstances the Commission considers it fair to extend that period - within such further period as the Commission allows.

The Form F17 Declaration accompanying the application stated that the Agreement was made on 22 July 2022. The application was therefore lodged 5 days outside of the 14-day period.

The Employer submitted the delay was attributable to unexpected periods of personal leave taken by relevant persons within its organisation.

Having regard to all of the circumstances, I consider it fair to exercise my discretion under s.185(3)(b) of the Act to extend the time for the application to be made until 10 August 2022. An order to that effect will be issued with this decision.

Section 190 Undertakings

The Employer 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.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining representative

The Health Services Union (HSU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

In accordance with s.201(2) of the FW Act, I note that the Agreement covers the HSU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 19 September 2022. The nominal expiry date of the Agreement is 1 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from Medea Park Association Incorporated for the approval of the Medea Park Association Incorporated General Staff Enterprise Agreement 2021. The applicant is an aged care provider and the application was made pursuant to section 185 of the Fair Work Act 2009. The application was lodged five days after the required 14-day period and the employer attributed the delay to unexpected periods of personal leave. The employer also provided written undertakings which were satisfactory to the Commission.

The primary legal issue was whether the late application could be approved in light of the statutory requirement for prompt lodgment. The Commission considered the circumstances of the delay and determined it was fair to extend the time for lodgment. Other issues included whether the employer's undertakings would cause financial detriment to employees or result in substantial changes to the agreement. The Commission was satisfied that neither issue applied.

The Commission found it was fair to extend the time for lodgment of the application and approved the agreement subject to the employer's undertakings. The agreement will operate from 19 September 2022 and expire on 1 August 2024. The Health Services Union, a bargaining representative for the agreement, has elected for the agreement to cover it. The Commission approved the agreement on the basis that all relevant statutory requirements had been met.

The orders of the Commission were that the application for approval of the agreement be accepted as lodged on 10 August 2022 and that the agreement be approved with effect from 19 September 2022. The employer's undertakings were accepted as terms of the agreement. The agreement will expire on 1 August 2024 unless earlier terminated in accordance with its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established