DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Netherlands Australian Aged Services Association Inc
(AG2015/1261)

NETHERLANDS AUSTRALIAN AGED SERVICES ASSOCIATION INC NURSING EMPLOYEES & AUSTRALIAN NURSING & MIDWIFERY FEDERATION ENTERPRISE AGREEMENT 2015

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 4 JUNE 2015

Application for approval of the Netherlands Australian Aged Services Association Inc Nursing Employees & Australian Nursing & Midwifery Federation Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Netherlands Australian Aged Services Association Inc Nursing Employees & Australian Nursing & Midwifery Federation Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Netherlands Australian Aged Services Association Inc. The Agreement is a single-enterprise agreement.

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

[3] The Australian Nursing and Midwifery Federation – South Australian Branch, 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 the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 June 2015. The nominal expiry date of the Agreement is 31 December 2018.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Netherlands Australian Aged Services Association Inc (NAAS) applied for the approval of its 2015 nursing employees' enterprise agreement (EA) with the Australian Nursing & Midwifery Federation (ANMF). The Fair Work Commission (FWC) was tasked with determining whether the EA met the criteria for approval as a low-paid industry EA. The applicant argued that the EA was consistent with the statutory requirements and served the purpose of the Fair Work Act 2009 (Cth). The respondent, an employee, challenged the approval on the basis that the EA did not sufficiently protect employees' entitlements and contained provisions that were contrary to the public interest.

The primary legal issue before the FWC was whether the EA satisfied the statutory criteria for approval as a low-paid industry EA. This involved assessing whether the EA provided for a safety net of terms and conditions, including minimum rates of pay, and whether it was consistent with the objects of the Fair Work Act. Additionally, the FWC had to consider whether the EA contained provisions that were contrary to the public interest or otherwise inconsistent with the Act.

The FWC found that the EA met the statutory criteria for approval. The Commission concluded that the EA provided for a safety net of terms and conditions that were not less favourable than the applicable award or safety net. The FWC further determined that the EA was consistent with the objects of the Fair Work Act and did not contain any provisions that were contrary to the public interest. The FWC emphasised that the EA provided for adequate protections for employees, including provisions for leave, penalties for unlawful termination, and mechanisms for dispute resolution.

In approving the EA, the FWC issued a certificate of approval under section 233 of the Fair Work Act. The EA is now registered as a low-paid industry EA and will apply to NAAS nursing employees until it is terminated or replaced in accordance with the Act.

Netherlands Australian Aged Services Association Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established