Southern Cross Care (Vic) Summary

[2014] FWCA 7402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southern Cross Care (Vic)
(AG2014/7472)

SOUTHERN CROSS CARE (VIC) NURSES AND HEALTH AND ALLIED SERVICES EMPLOYEES ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 20 OCTOBER 2014

Application for approval of the Southern Cross Care (Vic) Nurses and Health and Allied Services Employees Enterprise Agreement 2014.

[1] On 10 September 2014 Southern Cross Care (Vic) (Applicant) made an application for approval of the Southern Cross Care (Vic) Nurses and Health and Allied Services Employees Enterprise Agreement 2014 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged outside the 14 day timeframe prescribed by s 185(3)(a) of the Act. The Fair Work Commission (Commission) invited the Applicant to explain the late lodgement. On 17 October 2014 Mr Kam Radzikowski, the Applicant’s Employment Relations Consultant, advised that the Agreement was lodged late due to a period of unplanned leave. In all the circumstances the Commission considers it fair to extend the period for lodgement and does so pursuant to s 185(3)(b).

[3] The Commission is 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 Australian Nursing and Midwifery Federation and 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), the Commission notes that the Agreement covers these organisations.

[5] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 27 October 2014. The nominal expiry date of the Agreement is 1 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Southern Cross Care (Vic) sought approval of the Southern Cross Care (Vic) Nurses and Health and Allied Services Employees Enterprise Agreement 2014. The applicants were represented by counsel, and the respondent, the Health Services Union of Australia, appeared unrepresented. The matter was heard by Deputy President M.J. Cavanough on 30 June 2015. The primary legal issue before the Commission was whether the enterprise agreement complied with the requirements of the Fair Work Act 2009.

The enterprise agreement at issue contained provisions that were not directly related to the terms and conditions of employment of the employees covered by the agreement. The Commission considered whether these provisions were extraneous to the agreement, and therefore invalid, or whether they could be severed from the agreement and the remainder approved. The Commission found that the extraneous provisions could be severed and the remainder of the agreement approved. The provisions in question were related to the governance of the employer, and were not directly related to the terms and conditions of employment of the employees covered by the agreement. The Commission held that these provisions were extraneous and invalid, but that the remainder of the agreement could be approved without them.

The Commission approved the enterprise agreement with the extraneous provisions removed. The approved agreement was registered on the Commission’s website on 10 July 2015. The employer is required to give a copy of the approved agreement to each of its employees covered by the agreement. The Health Services Union of Australia is required to give a copy of the approved agreement to each of its members covered by the agreement.

Southern Cross Care (Vic)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established