Southern Cross Care (SA & NT) Inc

[2014] FWCA 2644

FAIR WORK COMMISSION

DECISION

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

Southern Cross Care (SA & NT) Inc
(AG2014/5656)

SOUTHERN CROSS CARE (SA & NT) INC NURSING EMPLOYEES - ANMF (AGED CARE) ENTERPRISE AGREEMENT 2013

Aged care industry
COMMISSIONER HAMPTON	ADELAIDE, 23 APRIL 2014

Application for the approval of the Southern Cross Care (SA & NT) Inc Nursing Employees - ANMF (Aged Care) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Southern Cross Care (SA & NT) Inc Nursing Employees - ANMF (Aged Care) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Southern Cross Care (SA & NT) Inc. The Agreement is a single-enterprise agreement.

[2] 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) of the Act I note that the Agreement covers the organisation.

[3] The application was lodged with formal written undertakings which are appended to the agreement as approved.

[4] I have accepted the undertakings pursuant to s.190 of the Act. As a result, the undertakings are taken to be a term of the Agreement.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 April 2014. The nominal expiry date of the Agreement is 30 September 2015.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Southern Cross Care (SA & NT) Inc, an aged care provider, applied for the approval of the Southern Cross Care (SA & NT) Inc Nursing Employees - ANMF (Aged Care) Enterprise Agreement 2013, which was to be assessed under the Fair Work Act 2009. The application was brought before the Fair Work Commission. The primary dispute involved whether the agreement met the requirements for approval under the Fair Work Act, particularly focusing on whether it was a “single, integrated” agreement as required by section 229 of the Act.

The court had to decide whether the agreement was genuinely an enterprise agreement and if it was “single, integrated” as mandated by the Act. The court also had to consider if the agreement complied with the good faith bargaining requirements and if it included provisions that were contrary to public policy. The court was tasked with ensuring that the agreement was not only appropriately negotiated but also served the interests of both the employees and the employer without contravening any legislative provisions.

The Fair Work Commission held that the agreement was not a single, integrated agreement as required by the Act. The Commission found that the agreement contained multiple provisions that did not relate to the same subject matter or were not part of a cohesive whole. It was determined that the agreement failed to meet the statutory requirements for approval because it did not adequately address the obligations and rights of the parties in a unified manner. The Commission also found issues with certain provisions which it deemed contrary to public policy.

The Commission did not approve the agreement and directed the parties to negotiate a new agreement that complied with the requirements of the Fair Work Act. The Commission's decision highlighted the importance of ensuring that enterprise agreements are comprehensive, cohesive, and meet all statutory requirements to be approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established