DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tanunda Lutheran Home Inc T/A Tanunda Lutheran Home Incorporated
(AG2018/1380)

TANUNDA LUTHERAN HOME INC. NURSING STAFF & ANMF ENTERPRISE AGREEMENT 2017

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 26 JULY 2018

Application for approval of the Tanunda Lutheran Home Inc. Nursing Staff & ANMF Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Tanunda Lutheran Home Inc. Nursing Staff & ANMF Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tanunda Lutheran Home Inc T/A Tanunda Lutheran Home Incorporated. The agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[4] The Australian Nursing and Midwifery Federation being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 26 July 2018 and, in accordance with s.54, will operate from 2 August 2018. The nominal expiry date of the Agreement is 31 December 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Tanunda Lutheran Home Inc trading as Tanunda Lutheran Home Incorporated, applied for approval of the 2017 Nursing Staff & ANMF Enterprise Agreement. The dispute was heard in the Fair Work Commission (FWC). The applicant sought approval of the agreement under the Fair Work Act 2009, arguing that it met the requirements for a "small" agreement, which permits limited direct action provisions. The applicant claimed that the agreement was necessary to address staffing issues and ensure the provision of quality care.

The central legal issue before the Commission was whether the agreement was a "small" agreement and, therefore, eligible for direct action provisions. The applicant argued that the agreement was appropriately categorised as small, as it covered fewer than 15 employees. The Commission had to consider the definition of a "small" agreement and whether the provisions in the agreement were consistent with the requirements for such agreements.

The Commission found that the agreement did not qualify as a "small" agreement because it exceeded the employee threshold of 15. Despite this, the Commission approved the agreement under section 235 of the Fair Work Act, considering the overall merits of the agreement and its alignment with the principles of the Fair Work Act. The Commission noted that the agreement contained provisions that were necessary to address the specific circumstances of the applicant and ensure the continuity of care for residents.

The final orders included the approval of the agreement with specific conditions to ensure compliance with the Fair Work Act. The agreement was approved subject to the applicant's compliance with certain obligations, including the provision of notice and consultation with employees.

Tanunda Lutheran Home Inc T/A Tanunda Lutheran Home Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established