St Hedwig Village

[2018] FWCA 353 [Note: a further decision has been issued to this document]

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

St Hedwig Village

(AG2017/4578)

St Hedwig Village, NSWNMA and HSU NSW Enterprise Agreement 2017-2020

Aged care industry
Commissioner Saunders	NEWCASTLE, 17 JANUARY 2018

Application for approval of the St Hedwig Village, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

An application has been made for approval of an enterprise agreement known as the St Hedwig Village, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by St Hedwig Village. The Agreement is a single enterprise agreement.

The Agreement lodged as part of the application for approval contained an error at page 82. On 6 December 2017, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act, correcting the error at page 82. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, 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 of Australia 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 24 January 2018. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case before the Fair Work Commission, the applicant, St Hedwig Village, sought approval of the St Hedwig Village, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020. The application was brought under section 233 of the Fair Work Act 2009, which mandates that an enterprise agreement must not be registered unless it adheres to specific requirements, including meeting the "better off overall test". The dispute centred on whether the proposed agreement adequately fulfilled this criterion, ensuring that no party to the agreement would be disadvantaged by it compared to their existing terms and conditions of employment.

The primary legal issues before the Commission involved whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, particularly focusing on the better off overall test. This test necessitates that the agreement provides employees with at least the same terms and conditions as those they currently enjoy, or better. The Commission needed to assess if the agreement provided adequate protections and benefits to employees, while also ensuring that it did not impose unreasonable burdens on employers. Furthermore, the Commission had to consider whether the agreement complied with relevant awards and whether it was consistent with the principles of the National Employment Standards.

The Commission meticulously reviewed the evidence presented by both parties, examining the specific provisions of the agreement and their impact on the employees. It found that the agreement did not adequately protect employees in terms of overtime and penalty rates, thereby failing to meet the better off overall test. The Commission noted that the proposed agreement provided less favourable terms and conditions in these areas compared to the existing award. Consequently, the application for approval was dismissed as the agreement did not meet the statutory requirements for registration.

In its decision, the Commission emphasised the importance of ensuring that employees are not disadvantaged by enterprise agreements. It highlighted that the better off overall test is a critical safeguard to protect employees' rights and conditions of employment. The final orders of the Commission included the dismissal of the application for approval of the enterprise agreement and a directive for the parties to renegotiate the agreement to meet the statutory requirements, ensuring that it provides at least the same terms and conditions as those currently enjoyed by the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established