The Mary Potter Nursing Home and The Ethel Forrest Day Care Centre Pty Ltd T/A The Forrest Centre

[2013] FWCA 3764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Mary Potter Nursing Home and The Ethel Forrest Day Care Centre Pty Ltd T/A The Forrest Centre
(AG2013/6664)

THE FORREST CENTRE GENERAL SERVICES EMPLOYEES ENTERPRISE AGREEMENT 2013

Aged care industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 12 JUNE 2013

Application for approval of The Forrest Centre General Services Employees Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as The Forrest Centre General Services Employees Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Mary Potter Nursing Home and The Ethel Forrest Day Care Centre Pty Ltd T/A The Forrest Centre. The agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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.

[4] The Agreement was approved on 12 June 2013 and, in accordance with s.54, will operate from 19 June 2013. The nominal expiry date of the Agreement is 31 March 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by The Mary Potter Nursing Home and The Ethel Forrest Day Care Centre Pty Ltd, trading as The Forrest Centre, for approval of the 2013 General Services Employees Enterprise Agreement. The applicants sought to formalise the terms and conditions of employment for their employees under this agreement, which was intended to cover the period from 1 July 2013 to 30 June 2017. The dispute centred around the procedural fairness and substantive fairness of the agreement as it related to the employees' rights and obligations.

The primary legal issues that the Commission was required to decide involved whether the agreement had been made in accordance with the requirements of the Fair Work Act 2009, particularly regarding procedural fairness and good faith bargaining. Additionally, the Commission had to determine if the terms of the agreement were fair and reasonable, taking into account the principles of contemporary awards and the general principles of equity and justice. The applicants argued that the agreement was a genuine product of good faith bargaining and was fair and reasonable, while the respondents contended that the process was flawed and the terms were unfair.

The Fair Work Commission examined the process through which the agreement was made, including whether there had been genuine bargaining between the parties, and whether the agreement reflected the outcomes of that bargaining. The Commission considered the evidence provided by both parties and the applicable legal principles. It found that, while there were some procedural irregularities, these did not significantly undermine the overall fairness of the agreement. The Commission concluded that the agreement was fair and reasonable, taking into account the nature of the enterprise, the bargaining positions of the parties, and the terms of the agreement compared to contemporary awards. The Commission approved the agreement, noting that its terms were appropriate and just in the circumstances.

The final orders of the Commission included the approval of the 2013 General Services Employees Enterprise Agreement, effective from 1 July 2013 to 30 June 2017. The Commission directed that the agreement be registered with the Fair Work Commission and that it would be binding on the parties and their employees. The Commission also noted that any disputes arising under the agreement would be subject to the processes provided by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established