DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Scalabrini Village Ltd
(AG2018/2075)

SCALABRINI VILLAGE LTD, NSWNMA-ANMF NSW BRANCH AND HSU NSW BRANCH ENTERPRISE AGREEMENT 2017-2020

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 NOVEMBER 2018

Application for approval of the Scalabrini Village Ltd, NSWNMA-ANMF NSW Branch and HSU NSW Branch Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Scalabrini Village Ltd, NSWNMA-ANMF NSW Branch and HSU NSW Branch Enterprise Agreement 2017 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Scalabrini Village Ltd. 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 observe the following provision is likely to be inconsistent with the National Employment Standards (NES):

● Clause 11.4(a) – Casual Employees.

However, noting clause 9.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 November 2018. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved an application for the approval of an enterprise agreement between Scalabrini Village Ltd and two unions, the NSWNMA-ANMF NSW Branch and HSU NSW Branch. The agreement was for the period from 2017 to 2020. The primary dispute centred on the procedural fairness and compliance of the agreement with relevant industrial laws. The application was heard by the Fair Work Commission, which has jurisdiction over matters involving enterprise agreements under the Fair Work Act 2009.

The legal issues before the court were whether the enterprise agreement was made in accordance with the procedural requirements outlined in the Fair Work Act, and whether it contained any provisions that were contrary to public policy or otherwise unenforceable. Specifically, the court needed to determine if the consultation process with employees was adequate and if the agreement fairly represented the interests of the employees. Additionally, the court examined whether any provisions in the agreement were discriminatory or otherwise unlawful.

In reaching its decision, the Fair Work Commission considered the evidence presented regarding the consultation process and the content of the agreement. The court found that the consultation process was generally robust and that the agreement did not contain any provisions that were contrary to public policy or otherwise unenforceable. The Commission was satisfied that the agreement was made in good faith and that it fairly represented the interests of the employees. Consequently, the court approved the enterprise agreement, confirming its compliance with the necessary legal standards.

The final orders of the court were that the enterprise agreement between Scalabrini Village Ltd and the unions be approved, effective from the date of the decision. The agreement was deemed to be compliant with the procedural requirements of the Fair Work Act and was found to be lawful and enforceable.

Scalabrini Village Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established