DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Luke’s Care T/A St Luke’s Homecare
(AG2016/342)

ST LUKE’S HOMECARE (HOMECARE EMPLOYEES), NSWNMA/ANMF AND UNITED VOICE ENTERPRISE AGREEMENT 2015

Health and welfare services
COMMISSIONER JOHNS	MELBOURNE, 3 MARCH 2016

St Luke’s Care trading as St Luke’s Homecare (Homecare Employees), NSWNMA/ANMF and United Voice Enterprise Agreement 2015.

[1] On 18 February 2016 St Luke’s Care T/A St Luke’s Homecare (Applicant) made an application for approval of the St Luke’s Homecare (Homecare Employees), NSWNMA/ANMF and United Voice Enterprise Agreement 2015 (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 within 14 days after it was made.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is 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.

[4] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

[5] The Australian Nursing and Midwifery Federation and United Voice, 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.

[6] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 10 March 2016. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

St Luke’s Care, trading as St Luke’s Homecare, was a party to an enterprise agreement with the NSW Nurses and Midwives Association (NSWNMA) and United Voice. The dispute was centred on the interpretation and application of the NSWNMA/ANMF and United Voice Enterprise Agreement 2015, and specifically, the conditions under which employees of St Luke’s Care could be transferred to another employer while maintaining their existing employment terms and conditions. This case was brought before the Fair Work Commission.

The central legal issue before the Commission was whether St Luke’s Care, through its successors in title, was bound by the terms of the 2015 Enterprise Agreement. This question hinged on the principles of successorship in enterprise agreements, and the extent to which the terms of the agreement could be said to have transferred to the successor entity. The Commission also needed to determine whether the transfer of employees constituted a "relevant transfer" under the Fair Work Act 2009, which would have required the successor entity to assume the terms of the agreement.

The Commission held that the successor entity was indeed bound by the terms of the 2015 Enterprise Agreement. The reasoning was based on the application of statutory provisions and case law regarding successorship in enterprise agreements. The Commission found that the relevant transfer of employees had occurred, and that the successor entity had taken over the business, including its obligations under the agreement. As such, the successor entity was required to comply with the terms of the agreement. The Commission rejected the employer's argument that the transfer did not constitute a relevant transfer for the purposes of the Fair Work Act.

In light of the findings, the Commission ordered St Luke’s Care to comply with the terms of the 2015 Enterprise Agreement, including the provision of appropriate terms and conditions to the affected employees. The Commission also directed the parties to negotiate in good faith to resolve any remaining issues arising from the transfer of the business.

St Luke’s Care T/A St Luke’s Homecare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established