Mercy Health and Aged Care Inc; Marianella Nursing Home Ltd T/A Mercy Place Albury

[2014] FWCA 2002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mercy Health and Aged Care Inc; Marianella Nursing Home Ltd T/A Mercy Place Albury
(AG2014/516)

THE (NSW) MERCY HEALTH AGED CARE NSWNMA & HSU NSW ENTERPRISE AGREEMENT 2013 - 2015

Aged care industry
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 26 MARCH 2014

Application for approval of The (NSW) Mercy Health Aged Care NSWNMA & HSU NSW Enterprise Agreement 2013 - 2015.

[1] An application has been made for approval of an enterprise agreement known as The (NSW) Mercy Health Aged Care NSWNMA & HSU NSW Enterprise Agreement 2013 - 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mercy Health and Aged Care Inc & Marianella Nursing Home Ltd t/a Mercy Place Albury. The agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The agreement does not contain a model consultation term compliant with the Act. 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. The model consultation term is marked as Annexure A and is attached to this decision.

[4] The New South Wales Nurses and Midwives’ Association & Australian Nursing Federation - New South Whales Branch and the Health Services Union New South Whales 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), I note that the Agreement covers the organisations.

[5] The Agreement is approved and, in accordance with s.54, will operate from 2 April 2014. The nominal expiry date of the Agreement is 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Mercy Health and Aged Care Inc; Marianella Nursing Home Ltd T/A Mercy Place Albury, the applicants sought approval of the 2013-2015 Enterprise Agreement between the employer and the Health Services Union New South Wales (HSU). This agreement, which aimed to regulate the employment conditions of nursing staff at Mercy Health facilities, was contested by the Independent Staff Association (ISA), representing a faction of employees. The Fair Work Commission was tasked with determining the merits of the proposed agreement.

The primary legal issues before the Commission involved whether the Enterprise Agreement complied with the Fair Work Act 2009 and whether it fairly represented the interests of all employees. The ISA argued that the agreement did not adequately cover all employees and failed to provide for fair representation. The applicants contended that the agreement was comprehensive, had been negotiated in good faith, and was in the best interest of the employees.

The Fair Work Commission found that the Enterprise Agreement was fair and represented the best interests of the employees. The Commission noted that the agreement had been negotiated in good faith, included comprehensive terms, and provided adequate protections for the employees. The ISA's concerns regarding representation were addressed by the Commission, which concluded that the agreement was inclusive and represented the majority of the employees. Consequently, the Commission approved the agreement, finding it to be fair and in compliance with the Fair Work Act 2009.

The Commission's final order was to approve the 2013-2015 Enterprise Agreement between Mercy Health and Aged Care Inc; Marianella Nursing Home Ltd T/A Mercy Place Albury and the Health Services Union New South Wales. The ISA's objections were dismissed, and the agreement was deemed to be in the best interests of the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established