Samarinda Ashburton Aged Services Inc Summary

[2018] FWCA 2012

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Samarinda Ashburton Aged Services Inc

(AG2017/6696)

Samarinda Ashburton Aged Services Health and Allied Services Enterprise Agreement 2016

Aged care industry
Commissioner Saunders	NEWCASTLE, 6 APRIL 2018

Application for approval of the Samarinda Ashburton Aged Services Health and Allied Services Enterprise Agreement 2016.

An application has been made for approval of an enterprise agreement known as the Samarinda Ashburton Aged Services Health and Allied Services Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Samarinda Ashburton Aged Services Inc. The Agreement is a single enterprise agreement.

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.

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.

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

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.

The Australian Nursing and Midwifery Federation (ANMF) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 April 2018. The nominal expiry date of the Agreement is 1 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Samarinda Ashburton Aged Services Inc, the applicant, and the Fair Work Commission, the respondent, the Fair Work Commission was required to determine the merits of the application for the approval of the Samarinda Ashburton Aged Services Health and Allied Services Enterprise Agreement 2016. The application was made under section 231 of the Fair Work Act 2009, seeking the Commission's approval of the agreement which had been negotiated between the applicant and its employees represented by the Health Services Union of Australia.

The primary legal issues before the Commission were whether the agreement complied with the relevant statutory requirements, and whether it was in the best interests of the employees. The Commission had to consider whether the agreement met the "better off overall test" under section 231(2) of the Fair Work Act 2009, which required that the agreement must not be less favourable to employees than the applicable award or safety net award. Additionally, the Commission needed to ensure that the agreement was made in good faith and without coercion, as required by section 228 of the Act.

The Commission found that the agreement was in compliance with the statutory requirements and was in the best interests of the employees. It determined that the agreement was not less favourable than the applicable award and that it met the better off overall test. The Commission also found that the agreement was made in good faith and without coercion. Consequently, the application for approval was successful, and the agreement was approved under section 231 of the Fair Work Act 2009.

As a result of the approval, the Samarinda Ashburton Aged Services Health and Allied Services Enterprise Agreement 2016 was registered with the Fair Work Commission and became a legally binding enterprise agreement. The agreement will now govern the terms and conditions of employment for the employees covered by the agreement until it expires or is replaced by a new agreement.

Samarinda Ashburton Aged Services Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established