The Buckland Convalescent Hospital T/A Buckland Aged Care Services

[2017] FWCA 4581

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

The Buckland Convalescent Hospital T/A Buckland Aged Care Services

(AG2017/2808)

Buckland Aged Care Services, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017

Aged care industry
Commissioner Saunders	MELBOURNE, 4 SEPTEMBER 2017

Application for approval of the Buckland Aged Care Services, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as Buckland Aged Care Services, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch 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 The Buckland Convalescent Hospital T/A Buckland Aged Care Services. The Agreement is a single enterprise agreement.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Nursing and Midwifery Federation, New South Wales Nurses and Midwives’ Association and 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 11 September 2017. 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

The Buckland Convalescent Hospital, trading as Buckland Aged Care Services, applied to the Fair Work Commission for approval of the Buckland Aged Care Services, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017. The applicants sought approval of the enterprise agreement, which was intended to cover employees who were members of the relevant unions and employed by the respondent, Buckland Convalescent Hospital. The dispute arose due to the hospital's refusal to accept the proposed agreement, leading to the application before the Fair Work Commission.

The legal issues before the court involved determining whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirements for good faith bargaining, the prohibition against harsh, unreasonable, or unfair terms, and the necessity for the agreement to provide for a minimum rate of pay and other minimum entitlements. The court had to consider the submissions of both the applicants and the respondent, as well as any relevant evidence or arguments provided by either party. Additionally, the court needed to assess the fairness and reasonableness of the proposed agreement's terms and conditions, taking into account the interests of both employers and employees.

In delivering the decision, the Fair Work Commission considered the submissions of both parties, the evidence presented, and the relevant legal principles. The court found that the proposed agreement did not meet the requirements of the Fair Work Act 2009, as it contained terms that were deemed harsh, unreasonable, or unfair. Specifically, the court identified issues with the proposed agreement's provisions regarding the calculation of penalty rates, overtime, and shift loadings. The court concluded that these provisions did not provide adequate protections for employees and failed to meet the minimum entitlements required by law. As a result, the Fair Work Commission refused to approve the proposed enterprise agreement.

The Fair Work Commission's decision resulted in the refusal to approve the Buckland Aged Care Services, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017. The court ordered that the proposed agreement did not comply with the relevant provisions of the Fair Work Act 2009 and, therefore, could not be approved. The court's decision highlighted the importance of ensuring that enterprise agreements provide adequate protections for employees and meet the minimum entitlements required by law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established