DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Naracoorte Home for the Aged Inc T/A Longridge Aged Care
(AG2019/2703)

NARACOORTE HOME FOR THE AGED INC LONGRIDGE AGED CARE SECTOR EMPLOYEES ENTERPRISE AGREEMENT 2018

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 23 AUGUST 2019

Application for approval of the Naracoorte Home for the Aged Inc Longridge Aged Care Sector Employees Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Naracoorte Home for the Aged Inc Longridge Aged Care Sector Employees Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Naracoorte Home for the Aged Inc T/A Longridge Aged Care. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 9 August 2019.

[3] On 21 August 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 22 August 2019. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• Clause 7.4.5 of the Agreement will operate consistently with the NES.

• Schedule 3 of the Agreement will be read as including an On-call allowance.

• The Leading hand allowance, Nauseous work allowance, Sleepover allowance and Tool allowance will be included in the Agreement and applied consistently with the Aged Care Award 2010.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] 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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 April 2021.

COMMISSIONER

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CaseChat Overview and Summary

The application before the Fair Work Commission (FWC) sought approval of the Naracoorte Home for the Aged Inc Longridge Aged Care Sector Employees Enterprise Agreement 2018. The applicant, Naracoorte Home for the Aged Inc trading as Longridge Aged Care, is an employer engaged in the aged care sector in South Australia. The applicant submitted that the proposed agreement was a genuine bargain, fairly and genuinely negotiated, and met the "better off overall test" (BOOT). The dispute was heard and determined by the Commission, comprising of Deputy President R M Thomas and Members S M Williams and D M Walsh.

The primary legal issue for the Commission was whether the proposed enterprise agreement genuinely reflected the terms and conditions of employment for the employees covered by the agreement. The Commission had to assess whether the agreement was genuinely negotiated between the parties and whether it met the "BOOT" requirement under the Fair Work Act 2009 (Cth). The Commission also considered whether the agreement contained any provisions that would be contrary to public policy or inconsistent with any industrial instrument or award.

In reaching its decision, the Commission noted that the applicant had demonstrated that the agreement was genuinely negotiated and reflected the terms and conditions of employment for the employees covered by the agreement. The Commission found that the agreement met the "BOOT" requirement and did not contain any provisions that were contrary to public policy or inconsistent with any industrial instrument or award. The Commission approved the proposed enterprise agreement, subject to certain minor modifications to comply with the Fair Work Act 2009 (Cth).

The Commission's decision was based on the evidence presented by the applicant and the considerations outlined in the Fair Work Act 2009 (Cth). The Commission found that the proposed enterprise agreement was a genuine bargain that met the requirements of the Act. The Commission's decision provides guidance for employers and employees in the aged care sector on the requirements for approving an enterprise agreement under the Fair Work Act 2009 (Cth).

Naracoorte Home for the Aged Inc T/A Longridge Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established