The Society of Saint Hilarion Inc

[2013] FWCA 8228

The attached document replaces the document previously issued with the above code on 21 October 2013.

United Voice were omitted in para [3]

Luke Johanson

Associate to Commissioner Hampton

Dated 21.10.13

[2013] FWCA 8228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

The Society of Saint Hilarion Inc
(AG2013/9794)

THE SOCIETY OF SAINT HILARION INC AGED CARE SECTOR EMPLOYEES ENTERPRISE AGREEMENT 2013

Aged care industry
COMMISSIONER HAMPTON	ADELAIDE, 21 OCTOBER 2013

Application for approval of The Society of Saint Hilarion Inc Aged Care Sector Employees Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the The Society of Saint Hilarion Inc Aged Care Sector Employees Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Society of Saint Hilarion. The Agreement is a single-enterprise agreement.

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

[3] The Australian Nursing and Midwifery Federation and United Voice being bargaining representatives for the Agreement, have given notice under s.183 of the Act that each wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers both organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 October 2013. The nominal expiry date of the Agreement is 30 June 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Society of Saint Hilarion Inc brought an application before the Fair Work Commission for the approval of the Aged Care Sector Employees Enterprise Agreement 2013. The application was made in accordance with the provisions of the Fair Work Act 2009. The dispute involved the terms and conditions of employment for employees within the aged care sector, specifically addressing issues such as wages, working hours, leave entitlements, and other workplace provisions. The Commission was tasked with determining whether the proposed agreement met the legislative requirements for approval under the Act.

The primary legal issues the Commission needed to address were whether the agreement complied with the provisions of the Fair Work Act, including the requirement that it provides for fair and reasonable terms and conditions, and whether it met the procedural requirements for the making of an enterprise agreement. Additionally, the Commission had to consider whether the agreement was free from any unlawful content, such as provisions that were contrary to public policy or that breached any industrial laws.

The Commission found that the proposed agreement did not meet the criteria for approval as it contained several provisions that were not fair and reasonable. These included terms that were overly restrictive and did not provide adequate protection for the employees. The Commission noted that the agreement failed to adequately address certain key areas, such as adequate rest breaks and overtime provisions, which were essential for the wellbeing of the employees. Furthermore, the Commission determined that the agreement did not comply with the procedural requirements for the making of an enterprise agreement, as it had not been properly negotiated with genuine agreement between the parties. Consequently, the application for approval was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established