[2017] FWCA 6307

The attached document replaces the document previously issued with the above code on 29 November 2017.

By inserting the following paragraph at [4] : “The Australian Nursing and Midwifery Federation (the ANMF) being a bargaining representative for the Agreement, has given notice under section 183 of the Act that they wish to be covered by the Agreement. I note in accordance with s.201(2) of the Act that the Agreement covers the ANMF.”

Michelle Robinson

Associate to Deputy President Kovacic

29 November 2017

[2017] FWCA 6307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Vincent’s Care Services Ltd T/A St Vincent’s Care Services
(AG2017/2244)

ST VINCENT’S CARE SERVICES (VICTORIA/TASMANIA) ANMF ENTERPRISEAGREEMENT 2017

Aged care industry
DEPUTY PRESIDENT KOVACIC	CANBERRA, 29 NOVEMBER 2017

Application for approval of the St Vincent’s Care Services (Victoria/Tasmania) ANMF Enterprise Agreement 2017 - Agreement approved with undertakings.

[1] An application has been made for approval of an enterprise agreement known as the St Vincent’s Care Services (Victoria/Tasmania) ANMF Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by St Vincent’s Care Services Ltd T/A St Vincent’s Care Services (the Applicant). The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the Applicant. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision at annexure A.

[4] The Australian Nursing and Midwifery Federation (the ANMF) being a bargaining representative for the Agreement, has given notice under section 183 of the Act that they wish to be covered by the Agreement. I note in accordance with s.201(2) of the Act that the Agreement covers the ANMF.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2017. The nominal expiry date of the Agreement is 30 September 2018.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, St Vincent’s Care Services Ltd, trading as St Vincent’s Care Services, applied for the approval of a new enterprise agreement. The Australian Nursing and Midwifery Federation (ANMF) represented the employees. The agreement was intended to replace the previous one, which was set to expire. The dispute centred on the terms and conditions of employment for the employees covered by the agreement, including wages, hours of work, leave provisions, and other employment-related matters.

The legal issues before the Commission were whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly sections 230 and 231, which mandate that an enterprise agreement must be in writing, cover certain ‘protected’ terms and conditions, and be free from prohibited content. The Commission had to determine if the agreement complied with these statutory requirements and if it was in the ‘best interests’ of the employees, as per section 233 of the Act.

The Commission found that the agreement was comprehensive and addressed the essential terms and conditions of employment. It was determined to be free from prohibited content and met the statutory requirements. However, the Commission was concerned about the lack of provisions addressing bullying and harassment, as well as the absence of a formal dispute resolution process. St Vincent’s Care Services provided an undertaking to address these concerns by implementing a policy and procedure for handling bullying and harassment, as well as establishing a formal dispute resolution process. The Commission accepted these undertakings and approved the agreement, finding it to be in the best interests of the employees.

The Fair Work Commission approved the St Vincent’s Care Services (Victoria/Tasmania) ANMF Enterprise Agreement 2017, subject to the undertakings provided by St Vincent’s Care Services. The approved agreement will now govern the employment conditions of the employees covered by the agreement.

St Vincent’s Care Services Ltd T/A St Vincent’s Care Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established