DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nambucca Valley Care Limited T/A Nambucca Valley Care Limited
(AG2017/4679)

THE NAMBUCCA VALLEY CARE, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 – 2020

Aged care industry
COMMISSIONER SAUNDERS	MELBOURNE, 7 MARCH 2018

Application for approval of the Cedar Place Aged Care Facility Limited, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Cedar Place Aged Care Facility Limited, 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 Nambucca Valley Care Limited T/A Nambucca Valley Care Limited. 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 5 March 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act, correcting the error at page 83. 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 Health Services Union of Australia and Australian Nursing and Midwifery Federation, being the bargaining representatives for the Agreement, has 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 these organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 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

Nambucca Valley Care Limited T/A Nambucca Valley Care Limited recently appeared before the Fair Work Commission in an application concerning the approval of a proposed enterprise agreement. The dispute arose between the applicant, an aged care provider, and the Health Services Union of NSW (HSU), a trade union representing the employees. The Commission was required to determine whether the proposed agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues before the Commission involved assessing whether the agreement provided for the "better off overall test" (BOOT), ensuring that the employees were not worse off financially and had improved conditions compared to the previous agreement. The Commission also needed to consider whether the agreement complied with the "in good faith" requirement and whether it contained any provisions that were contrary to public policy. Furthermore, the Commission had to ensure the agreement was free from any discriminatory provisions and was consistent with the principles of the Fair Work Act.

In delivering its decision, the Commission carefully examined the terms of the proposed agreement, taking into account the submissions from both parties. The Commission found that the agreement met the BOOT, as it provided employees with increased wages, improved conditions, and better entitlements compared to the previous agreement. The Commission also concluded that the agreement was negotiated in good faith and did not contain any provisions that were contrary to public policy or discriminatory. The Commission approved the agreement, highlighting the importance of the proposed changes for the employees' welfare and the overall functioning of the aged care facility. As a result, the Cedar Place Aged Care Facility Limited, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020 was approved by the Commission.

Nambucca Valley Care Limited T/A Nambucca Valley Care Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established