Southern Cross Care (Tas) Inc T/A Southern Cross Care (Tas) Inc

[2022] FWCA 4164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Cross Care (Tas) Inc T/A Southern Cross Care (Tas) Inc

(AG2022/4604)

Southern Cross Care (Tas) Inc Staff Enterprise Agreement 2021

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 28 NOVEMBER 2022

Application for approval of the Southern Cross Care (Tas) Inc Staff Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Southern Cross Care (Tas) Inc Staff Enterprise Agreement 2021 (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 (Tas) Inc T/A Southern Cross Care (Tas) Inc. The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Australian Nursing and Midwifery Federation and the Health Services Union 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 December 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Southern Cross Care (Tas) Inc, trading as Southern Cross Care (Tas) Inc, sought approval of the Staff Enterprise Agreement 2021 from the Fair Work Commission. The agreement in question was between the applicant, as the employer, and various employees who were represented by the Health Services Union of Australia. The nature of the dispute was the procedural fairness and the content of the agreement as it related to certain provisions affecting the employees' work conditions, remuneration, and other employment terms.

The legal issues the court had to determine included whether the agreement was properly negotiated and if it adhered to the relevant statutory requirements under the Fair Work Act 2009. The court had to examine whether the application for approval was lodged within the correct timeframe and if the agreement contained all necessary provisions as stipulated by the legislation. Additionally, the court had to consider whether the agreement was fair and reasonable in all its terms, particularly focusing on whether it met the standards of procedural fairness and protected the employees' rights.

The Fair Work Commission found that the application for approval was timely and that the agreement was the result of genuine bargaining between the parties. The court determined that the agreement was fair and reasonable in all its terms, and it met the necessary legal standards. The commission found no procedural unfairness and confirmed that all provisions were in line with the relevant legislation. Consequently, the court approved the Staff Enterprise Agreement 2021.

The final orders of the Fair Work Commission were that the Staff Enterprise Agreement 2021 be approved, and it would come into effect on the date of the decision. The agreement would bind the employees and the employer, and all parties would be subject to its terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established