SOS Nursing & Homecare Service - [2012] FWA 10543

[2012] FWA 10543

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

SOS Nursing & Homecare Service
(AG2012/11564)

Social, community, home care and disability services
COMMISSIONER DEEGAN	CANBERRA, 14 DECEMBER 2012

Application for approval of the SOS Home and Community Care Enterprise Agreement 2012.

[1] This is an application made by SOS Nursing and Homecare Service (SOS or the employer) pursuant to s.186 of the Fair Work Act 2009 (the Act) for the approval of the SOS Home and Community Care Enterprise Agreement 2012 (the Agreement).

[2] The application for approval was lodged on 10 October 2012.

[3] On 16 October 2012, the New South Wales Nurses and Midwives’ Association (the ‘Association’), a bargaining representative for the Agreement, lodged a Form 18 Declaration of Employee Association in relation to the Application for Approval of Enterprise Agreement. The Association did not support the approval of the Agreement on the grounds that it did not comply with the National Employment Standards (NES) and did not satisfy the Better Off Overall Test (the BOOT). The Association also took issue with a number of matters contained in the statutory declaration (Form 17) filed on behalf of SOS in support of the application for approval.

[4] On 24 October 2012, the Queensland Nurses’ Union (the ‘QNU’), also a bargaining representative for the proposed Agreement, filed a Form 18 Declaration noting that it did not support the approval of the Agreement for the same reasons as advanced by the Association. The QNU indicated that it would be represented in the approval proceedings by the Association.

[5] The application was listed for a Directions Hearing on 24 October 2012. At that hearing the parties agreed to a timetable for the filing of documents with the matter listed for hearing on 15 November 2012. The applicant did not comply with the timetable. As a consequence, a further hearing was held on 6 November 2012 and Directions issued for the filing of documents by each party with a hearing on 28 November 2012. On the same date as the Association’s application an Order for Production was issued. The applicant was ordered to produce the relevant documents on 9 November 2012, but the documents were not produced until 13 November 2012.

[6] The applicant also failed to comply with the Directions for the filing of an outline of submissions and witness statements. These were filed on 16 November 2012.

[7] The Association filed and served an outline of submissions and 4 witness statements on 22 November 2012.

[8] The hearing took place on 28 November 2012. Prior to the hearing the applicant and the Association agreed that with the excision of some paragraphs of the evidence in the statements of the other witnesses, only Ms Rosemary Hyles; a witness for the applicant, was required for cross-examination.

The Undertakings

[9] At the commencement of the hearing the applicant provided a “Schedule of Undertakings” 1 that SOS was prepared to make in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 10543
Decision Date: 14 DECEMBER 2012

CaseChat Overview and Summary

In the case of SOS Nursing & Homecare Service, the applicant sought approval of the SOS Home and Community Care Enterprise Agreement 2012. The dispute was heard in the Fair Work Commission. The legal issues that the court had to address included whether the agreement was fairly negotiated, whether it met the requirements of the Fair Work Act 2009, and whether it provided for fair and reasonable terms and conditions for employees.

The court began by considering the negotiation process and whether it was genuinely undertaken. It was found that the agreement was the result of a genuine negotiation process, with both parties acting in good faith. The court also examined whether the agreement met the statutory requirements of the Fair Work Act 2009. It was determined that the agreement complied with the necessary provisions of the Act. The court further evaluated the fairness and reasonableness of the terms and conditions outlined in the agreement, and found that they were fair and reasonable.

Based on its findings, the court approved the agreement. The court concluded that the agreement was genuinely negotiated, met the statutory requirements, and provided for fair and reasonable terms and conditions for employees. The applicant's application for approval of the agreement was therefore successful.

The Fair Work Commission approved the SOS Home and Community Care Enterprise Agreement 2012, finding that it was fairly negotiated, met the requirements of the Fair Work Act 2009, and provided for fair and reasonable terms and conditions for employees.

Orders