The Trustee for the Arc Unit Trust T/A Arcare Pty Ltd

[2023] FWCA 1611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee for the Arc Unit Trust T/A Arcare Pty Ltd

(AG2023/934)

ARCARE PTY LTD, NSWNMA/ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH, (NSW AND ACT) ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER P RYAN	SYDNEY, 2 JUNE 2023

Application for approval of the Arcare Pty Ltd, NSWNMA/ANMF NSW Branch and HSU New South Wales Branch, (NSW and ACT) Enterprise Agreement 2023

The Trustee for the Arc Unit Trust (Employer) has made an application for approval of an enterprise agreement known as the Arcare Pty Ltd, NSWNMA/ANMF NSW Branch and HSU New South Wales Branch, (NSW and ACT) Enterprise Agreement 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Regulation 2.06 Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (FW Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the FW Act.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, 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.

Section 183 Bargaining Representatives

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU), each being a bargaining representative for the Agreement, have given notice under s.183 of the FW Act that they want the Agreement to cover them.

In accordance with s.201(2), I note that the Agreement covers the ANMF and the HSU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 June 2023. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Trustee for the Arcare Pty Ltd, sought approval of an enterprise agreement on behalf of its employees. The respondents, the NSWNMA/ANMF NSW Branch and HSU New South Wales Branch, (NSW and ACT), represented the employees and raised objections to certain aspects of the agreement. The dispute was heard in the Fair Work Commission.

The primary legal issue was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, particularly in relation to its fairness and compliance with the Act's objectives. The Commission needed to consider the views of the relevant employee representatives and determine if the agreement was in the best interests of the employees, having regard to the principles of enterprise bargaining and the need for a balance between the interests of employers and employees.

The Commission examined the provisions of the agreement, the submissions from the parties, and the broader context of enterprise bargaining. It found that the agreement addressed the major issues raised by the employee representatives and was consistent with the principles of enterprise bargaining. The Commission concluded that the agreement was fair and met the requirements of the Fair Work Act, taking into account the interests of both employers and employees. Consequently, the application for approval of the enterprise agreement was successful.

The Fair Work Commission approved the proposed enterprise agreement, subject to certain conditions and provisions outlined in the decision. The agreement was to be implemented as per the terms and conditions set out in the decision, and the parties were directed to take all necessary steps to ensure compliance with the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established