Sitka HR Pty Ltd

[2023] FWCA 314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sitka HR Pty Ltd

(AG2022/5516)

SITKA HR PTY LTD, ANMF AND HSU ENTERPRISE AGREEMENT 2022

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 FEBRUARY 2023

Application for approval of the SITKA HR PTY LTD, ANMF and HSU Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the SITKA HR PTY LTD, ANMF and HSU Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sitka HR Pty Ltd. The Agreement is a single enterprise agreement.

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. The undertakings are taken to be a term of the Agreement.

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.

I note that Clause 31.2(b) may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Nursing and Midwifery Federation 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 8 February 2023. The nominal expiry date of the Agreement is 31 May 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved Sitka HR Pty Ltd, the Australian Nursing and Midwifery Federation (ANMF), and the Health Services Union (HSU). The matter concerned an application for the approval of the Sitka HR Pty Ltd, ANMF and HSU Enterprise Agreement 2022. The central dispute was whether the agreement met the necessary requirements under the Fair Work Act 2009 to be formally approved by the Commission.

The legal issues that the Commission was required to address included whether the agreement was a bona fide enterprise agreement, if it had been fairly negotiated, and if it contained the necessary minimum terms and conditions as mandated by the Fair Work Act. The Commission also needed to consider if the agreement adhered to the procedural requirements set forth in the legislation for the approval of enterprise agreements.

In its decision, the Commission found that the application satisfied the requirements for approval. It determined that the agreement was a bona fide enterprise agreement that had been fairly negotiated. The Commission also concluded that the agreement included all the minimum terms and conditions specified by the Fair Work Act. Furthermore, the Commission was satisfied that the necessary procedural requirements for approval had been met. As a result, the Sitka HR Pty Ltd, ANMF and HSU Enterprise Agreement 2022 was approved by the Fair Work Commission.

The final orders of the Commission included the approval of the enterprise agreement, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would then be applicable to the relevant employees and employers as specified within its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established