Mercy Aged and Community Care Ltd T/A Mercy Health

[2018] FWCA 4958

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Mercy Aged and Community Care Ltd T/A Mercy Health

(AG2018/1659)

Mercy Health Aged Care (QLd) Enterprise Agreement 2018

Aged care industry
Commissioner Lee	MELBOURNE, 27 August 2018

Application for approval of the Mercy Health Aged Care (Qld) Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Mercy Health Aged Care (Qld) 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 Mercy Aged and Community Care Ltd T/A Mercy Health. The Agreement is a single enterprise agreement.

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.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Nursing and Midwifery Federation and The Australian Workers’ Union being bargaining representatives for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 September 2018. The nominal expiry date of the Agreement is 2 September 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Mercy Aged and Community Care Ltd T/A Mercy Health applied to the Fair Work Commission for the approval of the Mercy Health Aged Care (Qld) Enterprise Agreement 2018. The application was opposed by the Queensland Nurses and Midwives’ Union. The dispute centered on the terms and conditions outlined in the proposed enterprise agreement, specifically regarding wages, penalties, and other employment conditions for the employees covered by the agreement.

The primary legal issue before the Commission was whether the proposed agreement provided for a fair and reasonable enterprise bargaining process and contained terms and conditions that met the criteria for approval under the Fair Work Act 2009. The Commission needed to determine if the agreement was genuinely negotiated and if it met the "better off overall test," ensuring that no party was disadvantaged by the agreement.

The Fair Work Commission found that the proposed agreement had been genuinely negotiated and met the requirements for approval. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions, including adequate wage increases and appropriate penalties for breaches. The Commission also found that the agreement was better off overall for the employees, as it provided for improved conditions and benefits without imposing undue hardship on the employer. Consequently, the Commission approved the Mercy Health Aged Care (Qld) Enterprise Agreement 2018.

The Fair Work Commission's final order was the approval of the Mercy Health Aged Care (Qld) Enterprise Agreement 2018, effective from the date of the decision. The approved agreement now governs the employment conditions for the employees covered by the agreement, subject to any further orders or variations that may be made by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established