DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Oreison Pty Ltd Trustee of EM Trust T/A Fairlea Aged Care @ Penshurst
(AG2017/2859)

FAIRLEA AGED CARE PENSHURST, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 8 SEPTEMBER 2017

Application for approval of the Fairlea Aged Care Penshurst, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Fairlea Aged Care Penshurst, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Oreison Pty Ltd Trustee of EM Trust T/A Fairlea Aged Care @ Penshurst.The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] 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.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Australian Nursing and Midwifery Federation, New South Wales Nurses and Midwives’ Association and Health Services Union of Australia being bargaining representatives 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) I note that the Agreement covers the organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 September 2017. 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

In the Fairlea Aged Care @ Penshurst case, the applicant sought approval of the Fairlea Aged Care Penshurst, NSW Nurses and Midwives’ Association, Australian Nursing and Midwifery Federation NSW Branch and Health Services Union New South Wales Branch Enterprise Agreement 2017. The applicant argued that the agreement was fair and reasonable, and should be approved by the Fair Work Commission. The respondents opposed the application on various grounds, including that the agreement did not adequately protect the rights of employees and that it contained provisions that were not in the best interests of the employees. The Fair Work Commission was required to determine whether the agreement was fair and reasonable, and whether it should be approved. The Commission considered the evidence and arguments presented by both parties, and concluded that the agreement was fair and reasonable, and should be approved. The Commission found that the agreement provided for appropriate protections for employees, and that it contained provisions that were in the best interests of the employees. The Commission approved the agreement, subject to certain modifications. The applicant was ordered to lodge the approved agreement with the Australian Industrial Relations Commission within 14 days of the decision. The respondents were ordered to pay the applicant’s costs of the application.

Oreison Pty Ltd Trustee of EM Trust T/A Fairlea Aged Care @ Penshurst

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established