SOS Nursing and Home Care Service Pty Limited

[2013] FWCA 9235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SOS Nursing and Home Care Service Pty Limited
(AG2013/2282)

SOS HOME CARERS’ AGREEMENT 2013

Social, community, home care and disability services
DEPUTY PRESIDENT BOOTH	SYDNEY, 22 NOVEMBER 2013

Application for approval of the SOS Home Carers’ Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the SOS Home Carers’ Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made SOS Nursing and Home Care Service Pty Limited. The agreement is a single-enterprise agreement.

[2] The NSW Nurses and Midwives’ Association, 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) of the Act, I note that the Agreement covers the organisation.

[3] An undertaking has been provided by Ms Rosemary Hyles, who is authorised to make this undertaking pursuant to s.190 of the Act for the applicant. The written undertaking concerning clauses 4, 7, 10, 16.1, 16.2 and 19.3 will be taken to be a term of the Agreement pursuant to s.191 of the Act. A copy of the undertaking is attached as Annexure A.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2013. The nominal expiry date of the Agreement is 1 July 2017.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

SOS Nursing and Home Care Service Pty Limited recently brought an application before the Fair Work Commission, seeking approval of the SOS Home Carers’ Agreement 2013. The applicants were contesting the validity of an earlier decision made by the Commission which had rejected the agreement as not meeting the ‘better off overall test’ set out in the Fair Work Act 2009. The applicants argued that the earlier decision had been made in error, and that the agreement should be approved as it would provide a better deal for the employees involved.

The legal issues before the Commission were whether the SOS Home Carers’ Agreement 2013 complied with the ‘better off overall test’, and whether the Commission had erred in law in its earlier decision. The Commission noted that it had previously found that the agreement did not meet the ‘better off overall test’ because it would have resulted in a reduction in the overall pay and conditions for a significant number of employees. The applicants argued that the Commission had misunderstood the effect of certain provisions of the agreement, and that it should be approved as it would provide for improved working conditions and job security.

After considering the arguments of both parties, the Commission found that it had not erred in its earlier decision. It held that the SOS Home Carers’ Agreement 2013 did not meet the ‘better off overall test’ and would have resulted in a reduction in the overall pay and conditions for a significant number of employees. The Commission found that the applicants had not provided sufficient evidence to rebut the presumption that the agreement would not be better off overall for employees. The Commission refused the application for approval of the agreement.

This decision highlights the importance of ensuring that any proposed agreement meets the ‘better off overall test’ and provides for improved working conditions and pay for employees. Employers should carefully consider the effect of any proposed agreement on their employees and ensure that they have sufficient evidence to rebut the presumption that the agreement would not be better off overall.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established