DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Harbison Memorial Retirement Village T/A Harbison Care
(AG2017/4548)

THE HARBISON MEMORIAL RETIREMENT VILLAGE, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 - 2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 16 JANUARY 2018

Application for approval of The Harbison Memorial Retirement Village, NSWNMA and HSU NSW Enterprise Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as The Harbison Memorial Retirement Village, NSWNMA and HSU NSW Enterprise Agreement 2017 -2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Harbison Memorial Retirement Village T/A Harbison Care. The Agreement is a single enterprise agreement.

[2] The Agreement lodged as part of the application for approval contained an error at page 82. On 6 December 2017, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act, correcting the error at page 82. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[3] 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.

[4] 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.

[5] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[6] 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.

[7] The Australian Nursing and Midwifery Federation 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 January 2018. 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 Harbison Memorial Retirement Village, trading as Harbison Care, sought approval for an enterprise agreement with the NSW Nurses and Midwives Association and the Health Services Union NSW. The dispute was heard in the Federal Circuit and Family Court of Australia. The applicant was seeking to have the agreement approved under section 232 of the Fair Work Act 2009, which allows for the making of an order approving a new agreement when certain criteria are met, including that the agreement was made in good faith and is not detrimental to employees.

The court was required to determine whether the agreement met the statutory requirements for approval. This included examining whether the agreement was made in good faith and whether it contained terms that were not detrimental to employees. The court also needed to consider whether the agreement complied with the Fair Work (Registered Organisations) Act 2009, particularly in relation to the registration of the unions as bargaining agents.

The court found that the agreement was made in good faith and did not contain any terms that were detrimental to employees. It also confirmed that the unions were appropriately registered as bargaining agents under the Fair Work (Registered Organisations) Act 2009. The court was satisfied that all the necessary criteria for approval had been met, and therefore, granted the application for approval of the agreement.

The court ordered that the enterprise agreement be approved and registered under the Fair Work Act 2009, effective from the date of the agreement. The order also provided for the agreement to be binding on the parties and their employees, and for the agreement to be listed on the Fair Work Commission's website. This decision provides clarity for future enterprise agreements in similar circumstances, confirming that where the statutory criteria are met, the court will grant approval.

The Harbison Memorial Retirement Village T/A Harbison Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established