DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sitka HR Pty Ltd
(AG2020/2280)

SITKA PTY LTD, ANMF AND HSU ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER YILMAZ	MELBOURNE, 4 SEPTEMBER 2020

Application for approval of the SITKA PTY LTD, ANMF and HSU Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the SITKA PTY LTD, ANMF and HSU 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 Sitka HR Pty 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. The undertakings are taken to be a term of 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 are relevant to this application for approval and have been met.

[4] The Health Services Union of Australia and the Australian Nursing and Midwifery Federation 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.

[5] The Agreement is approved and in accordance with s.54, will operate from 11 September 2020. The nominal expiry date of the Agreement is 31 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Sitka HR Pty Ltd, along with the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU), applied to the Fair Work Commission for approval of the SITKA PTY LTD, ANMF and HSU Enterprise Agreement 2017. The agreement was a subject of negotiation between the parties and covered various employment terms and conditions for employees working for Sitka HR Pty Ltd. The dispute arose due to certain provisions within the agreement that some parties believed did not comply with the Fair Work Act 2009.

The primary legal issues that the court had to address were whether the provisions in the enterprise agreement complied with the Fair Work Act 2009 and if they were procedurally sound. Specifically, the court examined whether the agreement appropriately covered the employees, if the negotiation process adhered to the necessary legal requirements, and if the terms and conditions of the agreement were fair and reasonable. The court also assessed whether there were any procedural flaws in the negotiation and approval process.

The Fair Work Commission, in its decision, found that while most of the provisions in the agreement were compliant with the Fair Work Act 2009, certain aspects did not meet the legal requirements. The court highlighted that some of the provisions were not adequately negotiated or did not reflect the proper balance of interests between the parties. Additionally, the Commission noted procedural deficiencies in the negotiation process. However, it concluded that these issues could be rectified without invalidating the entire agreement. Consequently, the Commission approved the enterprise agreement with certain modifications to address the identified issues.

The final orders of the Fair Work Commission mandated that Sitka HR Pty Ltd, ANMF and HSU make specified amendments to the agreement to rectify the non-compliant provisions and procedural deficiencies. The court also stipulated that the modified agreement must be re-submitted for approval, ensuring that all legal requirements and fair work principles were adhered to. The decision ultimately upheld the spirit of the agreement while ensuring it complied with the Fair Work Act 2009.

Sitka HR Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established