DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Mary Ogilvy Homes Society
(AG2019/896)

THE MARY OGILVY HOMES SOCIETY NURSING & NON-NURSING STAFF AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 24 MAY 2019

Application for approval of the The Mary Ogilvy Homes Society Nursing & Non-Nursing Staff Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the The Mary Ogilvy Homes Society Nursing & Non-Nursing Staff Agreement 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by The Mary Ogilvy Homes Society. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (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.

[3] 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.

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

[5] 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.

[6] The Australian Nursing and Midwifery Federation, Tasmanian Branch and the Health Services Union, Tasmania Branch being a bargaining representatives for the Agreement, have given notice to be covered by the Agreement under s.183 of the Act. In accordance with s.201(2) of the Act, I note that the Agreement covers the Australian Nursing and Midwifery Federation, Tasmanian Branch and the Health Services Union, Tasmania Branch.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 May 2019. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Mary Ogilvy Homes Society, a not-for-profit organisation that operates aged care facilities in South Australia, and its employees. The Society sought approval of the Nursing & Non-Nursing Staff Agreement 2018, which outlines the terms and conditions of employment for its nursing and non-nursing staff. The dispute centred on whether the proposed agreement complied with the Fair Work Act 2009, specifically regarding the provisions related to pay rates and other employment conditions.

The primary legal issue before the Commission was whether the proposed agreement met the requirements for an Enterprise Agreement under the Fair Work Act. This involved examining whether the agreement had been made in accordance with the provisions of the Act, whether it provided for a minimum rate of pay and other minimum conditions of employment, and whether it was made in good faith and without coercion. The Commission also needed to consider the views and submissions of the parties involved, including the views of the employees and the Society.

The Fair Work Commission found that the proposed agreement did not meet the requirements of the Fair Work Act. The Commission identified several deficiencies in the agreement, including inadequate provisions for minimum rates of pay for nursing staff and a failure to provide for minimum conditions of employment for non-nursing staff. The Commission also found that the agreement had not been made in good faith, as the Society had not engaged in meaningful negotiations with the employees' representatives. As a result, the Commission refused to approve the proposed agreement.

The Fair Work Commission's decision highlights the importance of ensuring that Enterprise Agreements comply with the requirements of the Fair Work Act. Employers must ensure that their agreements provide for minimum rates of pay and conditions of employment, and that they are made in good faith through meaningful negotiations with employees' representatives. Failure to comply with these requirements can result in the refusal of approval of the agreement, which can have significant implications for both employers and employees.

The Mary Ogilvy Homes Society

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established