DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sundale Ltd
(AG2019/3906)

SUNDALE LTD ENTERPRISE AGREEMENT 2018 - 2021

Aged care industry
COMMISSIONER JOHNS	SYDNEY, 24 DECEMBER 2019

Application for approval of the Sundale Ltd Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Sundale Ltd Enterprise Agreement 2018 - 2021 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). It has been made by Sundale Ltd (Sundale). The Agreement is a single enterprise agreement.

[2] Sundale is principally engaged in the business of residential and community aged care. It is a community based, not-for-profit organisation that operates retirement communities, care centres and in-home care support services.

[3] If approved the Agreement:

a) will cover:

i. Sundale,

ii. 568 employees in the following classifications:

A. Nurses;

B. Carers;

C. Support Workers; and

D. Allied Health Professionals,

iii. the Queensland Nurses’ and Midwives Union of Employees (QNMU) and the Australian Nursing and Midwifery Federation (ANMF) (collectively the “Nursing Unions”),

iv. the Australian Workers Union (AWU) Queensland; and

v. United Voice (now the United Workers Union). (UWU).

b) will not cover:

i. employees with individual employment agreements who are generally working in management positions, nor

ii. a small number of employees working in a single childcare centre in Kilcoy Queensland whose terms and conditions of employment are governed by the Child Services Award 2010.

c) will displace the operation of the:

i. Aged Care Award 2010;

ii. Nurses Award 2010;

iii. Social, Community, Home Care and Disability Services Industry Award 2010;

iv. Health Professionals and Support Services Award 2010.

[4] 217 (38%) of the employees to be covered by the Agreement voted on its approval. 187 (86%) voted to approve the Agreement. The Agreement was made on 27 September 2019.

[5] Each of the unions were bargaining agents for the Agreement in addition to two individual employee bargaining representatives. Scott Lucas from Miles Witt Partnership, an industrial relations advocacy and advisory services to employers in private health, residential aged care and community care, was appointed as Sundale’s bargaining representative.

[6] In support of the Application Sundale filed a Form F17 Employer’s Statutory Declaration declared by Danielle McKenzie its Chief Executive Officer.

[7] Each of the unions filed a F18 Statutory Declaration in relation to the Application. Each of the unions gave notice, pursuant to s.183 of the FW Act that they wanted the Agreement to cover them.

[8] The AWU and the UWU support the approval of the Agreement.

[9] The Nursing Unions do not support the approval of the Agreement. In short, this is because they contend that, in respect of the employees that the Nursing Unions have coverage and will be covered by the Agreement, the Agreement does not pass the better off overall test (BOOT).

Assessment of the Agreement

[10] The Application was lodged on 11 October 2019.

[11] On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWCA 8358
Decision Date: 24 DECEMBER 2019

CaseChat Overview and Summary

The case of Sundale Ltd involved an application for the approval of the Sundale Ltd Enterprise Agreement 2018-2021. The applicant, Sundale Ltd, sought the approval of the agreement from the Fair Work Commission, which was necessary for it to be legally binding on the parties involved. The dispute centred around the terms and conditions of employment as outlined in the agreement, which was to be applied to the company's employees.

The legal issues before the court included whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it had been genuinely bargained for by the parties. The court needed to determine whether the agreement met the requirements for approval and if the process leading to the agreement was fair and reasonable.

The court found that the Enterprise Agreement was in compliance with the relevant statutory requirements and had been genuinely negotiated between the parties. The agreement was considered to be in the best interests of the employees and the employer. The court also noted that the process followed in reaching the agreement was transparent and fair. Consequently, the court approved the agreement, finding that it met all the necessary criteria for legal binding status. The approval of the agreement was subsequently confirmed, allowing it to be implemented within the company.

Orders