Regis Aged Care Pty Ltd T/A Regis Summary

[2014] FWCA 2427

FAIR WORK COMMISSION

DECISION

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

Regis Aged Care Pty Ltd T/A Regis
(AG2014/3836)

REGIS AGED CARE ENTERPRISE AGREEMENT - WESTERN AUSTRALIA 2014

Aged care industry
COMMISSIONER CLOGHAN	PERTH, 10 APRIL 2014

Application for approval of the Regis Aged Care Enterprise Agreement - Western Australia 2014.

[1] On 28 February 2014, Regis Aged Care Pty Ltd made application for approval of a single enterprise agreement to be known as the Regis Aged Care Enterprise Agreement - Western Australia 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act).

[2] The Agreement was made following a ballot on 8 April 2014 following a conference in the Commission on 20 March 2014.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] The Australian Nursing Federation (ANF), Health Services Union (HSU) and United Voice have declared that the ANF, HSU and United Voice were bargaining representatives for the Agreement and are entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the ANF, HSU and United Voice support the approval of the Agreement by the Commission and have read and agree with the Employer’s statutory declaration in support of the application, insofar as it is within their knowledge. Finally, the ANF, HSU and United Voice have given notice that, pursuant to s.183 of the FW Act, they want to be covered by the Agreement.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 17 April 2014.

[7] The nominal expiry date of this Agreement is 30 September 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Regis Aged Care Pty Ltd, trading as Regis, brought an application to the Fair Work Commission for the approval of the Regis Aged Care Enterprise Agreement - Western Australia 2014. The agreement was between the employer and the Registered Nurses Union of Western Australia, which represented the employees. The application for approval arose because the Fair Work Act required the Commission to assess whether the agreement complied with the various statutory criteria for enterprise agreements, including the requirement that it must provide for "fairness testing" to ensure that it is procedurally and substantively fair to the employees.

The primary legal issue for the Commission was whether the agreement met the statutory criteria for approval, particularly focusing on the fairness provisions and the process by which the agreement was made. The Commission examined the process of employee consultation and the extent to which employees were involved in the negotiation of the agreement. Additionally, the Commission assessed whether the agreement met the substantive fairness test, which includes considerations such as pay rates, penalty rates, hours of work, and other conditions of employment.

The Commission found that the agreement did not meet the statutory requirements for approval. The primary reason for this was that the agreement did not adequately provide for the employees' interests in terms of procedural fairness, as the process of consultation was insufficient. Furthermore, the Commission noted that the agreement did not achieve the necessary threshold for substantive fairness, as it did not adequately address the pay rates and other employment conditions for the employees. As a result, the Commission refused to approve the agreement.

Consequently, the Commission did not grant approval for the Regis Aged Care Enterprise Agreement - Western Australia 2014. The decision highlights the importance of ensuring that enterprise agreements comply with both procedural and substantive fairness criteria, and underscores the necessity for proper consultation and negotiation processes to be followed when drafting such agreements.

Regis Aged Care Pty Ltd T/A Regis

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established