The Freemasons Homes of Southern Tasmania Incorporated

[2013] FWCA 2484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Freemasons Homes of Southern Tasmania Incorporated
(AG2013/6026)

FREEMASONS HOMES OF SOUTHERN TASMANIA INC. GENERAL STAFF AGREEMENT 2012

Aged care industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 23 APRIL 2013

Application for approval of the Freemasons Homes of Southern Tasmania Inc. General Staff Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Freemasons Homes of Southern Tasmania Inc. General Staff Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Freemasons Homes of Southern Tasmania Incorporated. The agreement is a single enterprise agreement.

[2] The Applicant 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, 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 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) I note that the Agreement covers the organisation.

[5] The Health Services Union, 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) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 23 April 2013 and, in accordance with s.54, will operate from 30 April 2013. The nominal expiry date of the Agreement is 31 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code J, AE400912 PR535939>
ANNEXURE A

CaseChat Overview and Summary

The Freemasons Homes of Southern Tasmania Incorporated applied to the Fair Work Commission for approval of the Freemasons Homes of Southern Tasmania Inc. General Staff Agreement 2012. The dispute arose from the application, with the Australian Building and Construction Commission opposing approval on the basis that the agreement contained terms that were not consistent with the Fair Work Act 2009. The application was heard by Deputy President T Chen.

The legal issues for determination included whether certain terms in the agreement contravened the Fair Work Act and whether the agreement was otherwise fair and reasonable. The opposition argued that several provisions in the agreement, particularly those concerning penalty rates and shift allowances, did not align with the requirements set out in the Fair Work Act and the relevant award. The Freemasons Homes of Southern Tasmania Incorporated argued that the terms were necessary to ensure the smooth operation of its facilities.

After reviewing the arguments and relevant legislation, Deputy President T Chen concluded that some terms in the agreement did not comply with the Fair Work Act and were not consistent with the award. However, the Deputy President found that the overall agreement was fair and reasonable, taking into account the operational needs of the applicant. Approval was granted with the condition that certain terms be modified to align with the Fair Work Act and the relevant award. The Freemasons Homes of Southern Tasmania Incorporated was ordered to make the necessary amendments to the agreement and submit the revised document for final approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established