DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sir Joseph Banks Residential Care
(AG2017/3034)

SIR JOSEPH BANKS RESIDENTIAL CARE FACILITY, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	MELBOURNE, 4 SEPTEMBER 2017

Application for approval of the Sir Joseph Banks Residential Care Facility, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as Sir Joseph Banks Residential Care Facility, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sir Joseph Banks Residential Care.The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

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

[5] 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.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Australian Nursing and Midwifery Federation, New South Wales Nurses and Midwives’ Association and Health Services Union of Australia 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 September 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Sir Joseph Banks Residential Care is the subject of an application for the approval of the Sir Joseph Banks Residential Care Facility, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017. The applicant is the employer, while the respondents are the New South Wales Nurses and Midwives' Association (NSWNMA), the Australian Nursing and Midwifery Federation (ANMF) NSW Branch, and the Health Services Union (HSU) New South Wales Branch. The dispute concerns the approval of the enterprise agreement and whether it complies with the Fair Work Act 2009.

The primary legal issue before the court was whether the enterprise agreement meets the statutory requirements under the Fair Work Act. This included assessing whether the agreement provides for the appropriate bargaining representatives, covers the correct bargaining area, and includes the necessary minimum terms and conditions as prescribed by the Act. The court had to determine if the agreement was genuinely bargained and if it contained any unfair provisions that might contravene the Act's public interest considerations.

The court examined the evidence and submissions provided by the parties, focusing on the bargaining process and the content of the agreement. It concluded that the agreement was genuinely bargained and represented the terms and conditions of employment for the relevant employees. The court also found that the agreement contained the necessary minimum terms and conditions and did not include any unfair provisions that would contravene the public interest considerations. Therefore, the court approved the enterprise agreement, allowing it to be registered and enforceable under the Fair Work Act.

The final order of the court was that the Sir Joseph Banks Residential Care Facility, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 be approved and registered as a valid enterprise agreement under the Fair Work Act 2009. This decision ensures that the agreement can be implemented, and the terms and conditions it contains can be enforced between the employer and the employees covered by the agreement.

Sir Joseph Banks Residential Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established