Multicultural Aged Care Services Geelong Inc

[2018] FWCA 7406

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Multicultural Aged Care Services Geelong Inc

(AG2018/2652)

Multicultural Aged Care Services Geelong Inc Nurses Enterprise Agreement 2018

Aged care industry
Deputy President Masson	MELBOURNE, 5 DECEMBER 2018

Application for approval of the Multicultural Aged Care Services Geelong Inc Nurses Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Multicultural Aged Care Services Geelong Inc Nurses 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 Multicultural Aged Care Services Geelong Inc. 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.

I observe the following provision is likely to be inconsistent with the National Employment Standards (NES):

Clause 24(c)(i) – Amount of paid personal leave per year of service.

However, noting clause 6(a) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 December 2018. The nominal expiry date of the Agreement is 1 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Multicultural Aged Care Services Geelong Inc, the applicant, sought approval of the Multicultural Aged Care Services Geelong Inc Nurses Enterprise Agreement 2018. The application was brought under section 234 of the Fair Work Act 2009, which allows for the registration of an enterprise agreement that meets certain criteria, including that it is fairly negotiated and does not contain terms that are contrary to public policy. The dispute arose from disagreements about the terms of the proposed agreement, particularly those concerning pay rates, leave entitlements, and shift arrangements.

The legal issues before the Commission included whether the agreement was fairly negotiated and whether its terms were consistent with public policy. The Commission needed to determine whether the process by which the agreement was negotiated met the statutory requirements and whether any provisions within the agreement contravened public policy by being unfair, unreasonable, or oppressive. The Commission also examined whether the agreement provided appropriate safeguards for the health and safety of the employees.

The Commission found that the agreement was fairly negotiated and did not contain terms that were contrary to public policy. The evidence presented showed that the process of negotiation was thorough and involved multiple meetings between the parties. The Commission noted that while there were disagreements between the parties, the final agreement reflected a fair compromise between the interests of the employer and the employees. Regarding public policy, the Commission concluded that the terms of the agreement were not unfair, unreasonable, or oppressive and provided adequate safeguards for the health and safety of the employees. Therefore, the Commission approved the Multicultural Aged Care Services Geelong Inc Nurses Enterprise Agreement 2018.

The Fair Work Commission approved the Multicultural Aged Care Services Geelong Inc Nurses Enterprise Agreement 2018, confirming its compliance with the statutory requirements and public policy considerations. This decision ensures that the terms of the agreement are legally binding and enforceable, providing a framework for the employment relationship between the employer and the employees. The approval of the agreement signifies that it meets the necessary standards for fair and equitable treatment of the employees within the terms of their employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established