Pathways Sailors Bay Pty Ltd

[2013] FWCA 7259

FAIR WORK COMMISSION

DECISION

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

Pathways Sailors Bay Pty Ltd
(AG2013/8928)

PATHWAYS AGED CARE SAILORS BAY, NSWNMA & HSU NSW BRANCH ENTERPRISE AGREEMENT 2013

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 23 SEPTEMBER 2013

Application for approval of the Pathways Aged Care Sailors Bay, NSWNMA HSU NSW Branch Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Pathways Aged Care Sailors Bay, NSWNMA HSU NSW Branch Enterprise Agreement 2013 (the Agreement). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Pathways Sailors Bay Pty Ltd. The agreement is a greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declaration made on behalf of the employee organisation which will be covered by the Agreement.

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

[4] In accordance with s.187(5)(a) of the Act, I am satisfied the NSW Nurses and Midwives’ Association, the Australian Nursing Federation- NSW Branch and the Health Services Union NSW Branch are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 September 2013. The nominal expiry date of the Agreement is 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Pathways Sailors Bay Pty Ltd applied for the approval of the Pathways Aged Care Sailors Bay, NSWNMA HSU NSW Branch Enterprise Agreement 2013. The applicant sought approval of the agreement under section 235 of the Fair Work Act 2009, which requires the Fair Work Commission to approve an agreement if it is satisfied that certain criteria are met. The dispute arose as the NSWNMA HSU sought to have certain provisions of the agreement declared invalid, arguing they were inconsistent with the Act.

The court had to determine whether the agreement met the statutory criteria for approval and whether the provisions in question were consistent with the Act. The central issue was whether the provisions of the agreement, which related to the definition of "employee", were inconsistent with the Act as argued by the union. The court had to consider the purpose and effect of the provisions in question and whether they were necessary to achieve a legitimate workplace outcome.

The Fair Work Commission found that the agreement met the statutory criteria for approval. It held that the provisions in question, which provided for the classification of certain workers as "employees" for the purposes of the agreement, were not inconsistent with the Act. The Commission found that the provisions were necessary to achieve a legitimate workplace outcome and did not have the effect of undermining the rights of workers under the Act. Accordingly, the court approved the agreement.

The final orders of the court were that the Pathways Aged Care Sailors Bay, NSWNMA HSU NSW Branch Enterprise Agreement 2013 be approved as a registered agreement under section 235 of the Fair Work Act 2009. The court also declared that certain provisions of the agreement, which were the subject of the union's challenge, were not inconsistent with the Act and were therefore valid.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established