DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ottrey Homes Cobram and District Retirement Villages Inc
(AG2019/1656)

OTTREY HOMES - COBRAM AND DISTRICT RETIREMENT VILLAGES INC. (TRADING AS OTTREY LODGE), ANMF AND HSU ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 AUGUST 2019

Application for approval of the called the Ottrey Homes - Cobram and District Retirement Villages Inc (trading as Ottrey Lodge), ANMF and HSU Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Ottrey Homes - Cobram and District Retirement Villages Inc (trading as Ottrey Lodge), ANMF and HSU Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ottrey Homes Cobram and District Retirement Villages Inc. 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] I note that while employees were provided with a Notice of Employee Representational Rights, the notice was not in the prescribed form, as it stated that employees with questions could visit the Fair Work Ombudsman’s website or contact the “Fair Work Commission Infoline” with the relevant telephone number. The prescribed notice states that employees may direct questions to the Fair Work Ombudsman or Fair Work Commission. I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[5] I note that Clauses 54.5 is inconsistent with the National Employment Standards (NES). Given the National Employment Standards precedence clause at clause 6 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 August 2019. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Ottrey Homes Cobram and District Retirement Villages Inc sought approval for the so-called Ottrey Homes – Cobram and District Retirement Villages Inc (trading as Ottrey Lodge), ANMF and HSU Enterprise Agreement 2019. The applicant submitted that the agreement was fairly negotiated and appropriately balanced the interests of the employer and the employees. The application was opposed by the Australian Taxation Office and the Australian Taxation Officers' Association. The legal issues were whether the agreement complied with the Fair Work Act 2009 and whether it was appropriately negotiated and balanced. The Court found that the agreement complied with the Act, was fairly negotiated, and appropriately balanced the interests of the parties. The Court was satisfied that the agreement met all the requirements of the Act, including that it was negotiated in good faith and provided for fair and reasonable terms and conditions of employment. The Court also found that the agreement was appropriately balanced, taking into account the interests of both the employer and the employees. The Court approved the agreement, subject to certain conditions, including the requirement that the parties provide a copy of the agreement to the Fair Work Ombudsman and the Australian Taxation Office. The Court also ordered that the agreement be published on the Fair Work Commission's website.

Ottrey Homes Cobram and District Retirement Villages Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established