DECISION

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

Odyssey House McGrath Foundation T/A Odyssey House McGrath Foundation
(AG2015/3776)

ODYSSEY HOUSE MCGRATH FOUNDATION & NSWNMA ENTERPRISE AGREEMENT 2015

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 17 JULY 2015

Application for approval of the Odyssey House McGrath Foundation & NSWNMA Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Odyssey House McGrath Foundation & NSWNMA Enterprise Agreement 2015 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Odyssey House McGrath Foundation. The agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The New South Wales Nurses and Midwives’ Association and New South Wales Branch of the Australian Nursing and Midwifery Federation being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[4] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the applicant, the Odyssey House McGrath Foundation trading as the Odyssey House McGrath Foundation, sought approval of the Enterprise Agreement 2015 with the New South Wales Nurses and Midwives’ Association (NSWNMA). The Foundation operates a residential rehabilitation facility for people recovering from alcohol and drug dependency. The NSWNMA is the relevant union representing the Foundation’s employees. The Foundation and the union had negotiated the Enterprise Agreement which was put to a vote of the employees and approved. The employer sought the Commission’s approval of the agreement as a registered agreement under the Fair Work Act 2009.

The Foundation contended that the agreement met the requirements of section 231 of the Act because it was in writing and provided for the terms and conditions of employment. The union submitted that the agreement was made in good faith and that the bargaining was conducted in a manner that was not prejudicial to the health and efficiency of the industry. The employer and the union did not dispute that the agreement was made in good faith or that the agreement was procedurally fair. The only issue was whether the agreement complied with the good faith requirement because the employer had not taken steps to ensure that the union had an opportunity to be involved in the negotiation process.

The Commission found that the employer had not complied with the good faith requirement as it had not taken reasonable steps to ensure that the union had an opportunity to participate in the negotiation process. The Commission noted that the employer had taken steps to ensure the union was involved in the process, but it found that those steps were not reasonable in the circumstances. The Commission found that the employer had failed to provide the union with sufficient information to enable it to participate in the negotiation process. The Commission found that the employer had failed to consult with the union about the agreement and had not provided the union with a copy of the proposed agreement prior to the vote. The Commission found that the employer had not taken reasonable steps to ensure that the union had an opportunity to participate in the negotiation process and that the agreement did not comply with the good faith requirement.

The Commission did not approve the agreement. The Commission ordered that the application be dismissed.

Odyssey House McGrath Foundation T/A Odyssey House McGrath Foundation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established