DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2018/6733)

STOLTHAVEN AUSTRALIA PTY LTD & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2018

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COMMISSIONER LEE	MELBOURNE, 22 JANUARY 2019

Application for approval of the STOLTHAVEN AUSTRALIA PTY LTD & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2018

[1] An application has been made for approval of an enterprise agreement known as the STOLTHAVEN AUSTRALIA PTY LTD & NATIONAL UNION OF WORKERS 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 National Union of Workers. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] The National Union Workers 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.

[5] I observe that the following provision is likely to be inconsistent with the National

Employment Standards (NES):

● Clause 30 – Annual Leave – Accrual of Annual Leave and when Annual Leave can be taken are not specified.

● Clause 31 – Personal Leave – Leave does not accrue from year to year, employees are given to options for how leave can accrue.

However, noting clause 8 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 January 2019. 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

The case involved Stolthhaven Australia Pty Ltd, an aged care facility operator, and the National Union of Workers, a union representing some of the employees of Stolthhaven. The dispute was over the approval of an enterprise agreement between the parties. The application for approval of the agreement was heard by the Fair Work Commission, an industrial tribunal with jurisdiction over employment and workplace relations matters in Australia.

The primary legal issue before the Commission was whether the agreement complied with the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the agreement had been made in accordance with the Act's good faith bargaining provisions and whether it contained the minimum terms and conditions mandated by the Act. The Commission also considered whether the agreement was in the best interests of the employees it covered.

The Commission found that the agreement had been made in good faith and contained all the required minimum terms and conditions. It also found that the agreement was in the best interests of the employees, taking into account factors such as the level of pay and conditions provided by the agreement, the views of the employees, and the economic circumstances facing the industry. The Commission noted that the agreement provided for a significant increase in pay and improvements to other conditions of employment, which it considered to be a fair outcome for the employees. The Commission approved the agreement and made it legally binding on the parties.

The Commission ordered that the Stolthhaven Australia Pty Ltd & National Union of Workers Enterprise Agreement 2018 be approved and registered, and that it would have effect from the date of the Commission's decision. The parties were directed to take all necessary steps to give effect to the agreement, including by updating their records and systems to reflect the new terms and conditions. The Commission also made orders to ensure that the agreement was properly communicated to the employees and that any disputes arising under it would be resolved through the agreed dispute resolution procedures.

National Union of Workers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established