DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Montana Aged Care Facility
(AG2017/3202)

MONTANA AGED CARE FACILITY, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	MELBOURNE, 6 SEPTEMBER 2017

Application for approval of the Montana Aged Care Facility, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as Montana Aged Care Facility, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Montana Aged Care Facility.The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] 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.

[6] 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.

[7] The Australian Nursing and Midwifery Federation, New South Wales Nurses and Midwives’ Association 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 the organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2017. 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

Montana Aged Care Facility was an application by the New South Wales Nurses and Midwives’ Association (NSWNMA) for approval of the Montana Aged Care Facility 2017 Enterprise Agreement. The application was brought before the Fair Work Commission, which was required to decide whether the agreement met the requirements of the Fair Work Act 2009. Two unions, the NSWNMA and the Health Services Union New South Wales Branch, had applied for the agreement to be approved, while another union, the Australian Nursing and Midwifery Federation, opposed the application.

The legal issues the Commission was required to decide were whether the agreement was a "single interest employer agreement" and whether the agreement met the "better off overall test." The Commission found that the agreement was a single interest employer agreement as it only covered employees of Montana Aged Care Facility. However, the Commission found that the agreement did not meet the better off overall test, as it did not provide adequate protections for employees in terms of wages, conditions, and entitlements. The Commission also found that the agreement did not adequately address issues of workplace health and safety, bullying and harassment, and the provision of adequate training and development opportunities for employees.

The Fair Work Commission ultimately refused to approve the agreement, finding that it did not meet the requirements of the Fair Work Act 2009. The Commission ordered that the agreement be returned to the parties for further negotiation and amendment. The Commission emphasised the importance of ensuring that enterprise agreements provide adequate protections for employees and promote fair and equitable workplace relations. The decision highlights the importance of careful consideration and negotiation in the development of enterprise agreements, and the need for unions and employers to work together to ensure that agreements meet the requirements of the law and provide fair outcomes for all parties.

Montana Aged Care Facility

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established