DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Palms Aged Living Management Pty Ltd T/A The Palms Aged Care
(AG2017/5187)

PALMS AGED LIVING MANAGEMENT SERVICES PTY LTD, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 13 DECEMBER 2017

Application for approval of the Palms Aged Living Management Services Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Palms Aged Living Management Services Pty Ltd, 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 Palms Aged Living Management Pty Ltd T/A the Palms Aged Care. The Agreement is a single enterprise agreement.

[2] 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.

[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] 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.

[7] The Australian Nursing and Midwifery Federation, New South Wales Nurses and Midwives’ Association and the 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 20 December 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 Palms Aged Living Management Pty Ltd, trading as The Palms Aged Care, sought approval of the Palms Aged Living Management Services Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017. The application was heard in the Fair Work Commission. The primary dispute centred on the validity and enforceability of the proposed enterprise agreement, with various unions and employer representatives presenting their respective positions.

The court was required to determine whether the enterprise agreement complied with the requirements set out in the Fair Work Act 2009. Specifically, the court needed to assess if the agreement was properly certified, if it contained the necessary minimum terms and conditions, and whether the agreement had been fairly and properly negotiated. The unions argued that the agreement was fair and met all statutory requirements, while the employer contested certain aspects of the agreement, particularly those relating to the terms of employment for staff.

In its decision, the Fair Work Commission found that the Palms Aged Living Management Services Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 was valid and should be approved. The Commission concluded that the agreement had been fairly negotiated and contained all the necessary minimum terms and conditions. Furthermore, the Commission determined that the agreement was properly certified and met all legislative requirements. As a result, the Commission granted approval of the enterprise agreement.

The final orders of the Commission included the approval of the Palms Aged Living Management Services Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017, effective from the date of the Commission's decision. This decision provides clarity on the enforceability of the enterprise agreement and sets a precedent for similar agreements in the aged care industry.

The Palms Aged Living Management Pty Ltd T/A The Palms Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established