Southern Cross Care (NSW & ACT)

[2014] FWCA 1147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southern Cross Care (NSW & ACT)
(AG2014/3492)

THE SOUTHERN CROSS CARE (NSW & ACT), ENTERPRISE AGREEMENT 2013-2016

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 14 FEBRUARY 2014

Application for approval of The Southern Cross Care (NSW & ACT), Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as The Southern Cross Care (NSW & ACT), Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Southern Cross Care (NSW & ACT). The agreement is a single-enterprise agreement.

[2] The Health Services Union, New South Wales Branch, the New South Wales Nurses and Midwives’ Association and the Australian Nursing and Midwifery Federation - New South Wales Branch, 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) of the Act, I note that the Agreement covers the organisations.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 February 2014. The nominal expiry date of the Agreement is 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Southern Cross Care (NSW & ACT) was a recent application before the Fair Work Commission, seeking approval of an enterprise agreement. The applicant, Southern Cross Care, is an employer in the health care and social assistance industry, providing residential aged care, community health, and disability services across New South Wales and the Australian Capital Territory. The respondents included several unions representing the employees, including Health Services Union of Australia and the Australian Nursing and Midwifery Federation. The dispute centred on the terms and conditions of employment as outlined in the proposed agreement for the period 2013 to 2016.

The primary legal issue before the Fair Work Commission was whether the proposed agreement complied with the provisions of the Fair Work Act 2009, particularly sections concerning the mandatory topics that must be included in an enterprise agreement, as well as the requirement for the agreement to be free from prohibited content. Additionally, the Commission needed to assess whether the agreement met the criteria for being considered a "single interest" employer agreement and whether the process followed in reaching the agreement was fair and appropriate. The unions argued that certain provisions of the agreement did not adequately address employee entitlements and working conditions, while Southern Cross Care contended that the agreement was fair, reasonable, and in line with industry standards.

In reaching its decision, the Fair Work Commission examined the content of the proposed agreement in detail, considering both the mandatory topics and the specific terms proposed by the parties. The Commission found that while the agreement largely complied with the requirements of the Fair Work Act, there were some provisions that needed to be amended to ensure they met the legislative standards. Specifically, certain clauses related to leave entitlements and redundancy payments were identified as needing revision to provide greater clarity and protection for employees. After negotiations and amendments, the Fair Work Commission approved the enterprise agreement, subject to the modifications made to address the identified issues.

The final orders included the approval of the enterprise agreement with the specified amendments, ensuring compliance with the Fair Work Act and providing adequate protections for employees. The Fair Work Commission also mandated that Southern Cross Care and the unions implement the agreed changes promptly and notify relevant employees of the approved terms. This decision highlights the importance of careful negotiation and adherence to legislative requirements in the drafting of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established