DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Merton Living Limited T/A Merton Living
(AG2017/4812)

MERTON LIVING, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 - 2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 14 MARCH 2018

Application for approval of the Merton Living, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Merton Living, 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 Merton Living Limited T/A Merton Living. 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 7 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 then. 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 21 March 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

In the recent decision of Merton Living Limited T/A Merton Living, the Federal Circuit and Family Court of Australia was called upon to consider the application for approval of the Merton Living, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020. The matter arose from a dispute between Merton Living, an aged care provider, and the Health Services Union NSW (HSU NSW), which represents the workers. The central issue was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009.

The court was tasked with determining whether the agreement complied with the provisions of the Fair Work Act, including whether it provided for the appropriate minimum terms and conditions, and if it was consistent with the statutory entitlements of the employees. Additionally, the court had to consider whether the agreement contained any terms that were contrary to public policy or that had the potential to undermine the protections afforded to employees under the Act.

The court found that the agreement largely complied with the statutory requirements and did not contain any terms that were contrary to public policy. The agreement provided for minimum terms and conditions that were in line with the Act and ensured that the employees would not be worse off financially. The court also noted that the agreement contained provisions that went beyond the statutory minimums in certain areas, which was acceptable. After careful consideration, the court approved the agreement, recognising that it met the necessary legal standards and represented a fair agreement between the parties.

The final orders of the court approved the Merton Living, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020, subject to certain conditions to ensure ongoing compliance with the Fair Work Act. The court's decision provides clarity and certainty for the parties involved, allowing the agreement to take effect and govern the employment relationship between Merton Living and its employees.

Merton Living Limited T/A Merton Living

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established