DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Willows Private Nursing Home Pty Ltd
(AG2017/2826)

THE WILLOWS PRIVATE NURSING HOME PTY LTD, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER SAUNDERS	MELBOURNE, 7 SEPTEMBER 2017

Application for approval of The Willows Private Nursing Home 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 Willows Private Nursing Home 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 Willows Private Nursing Home Pty Ltd.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 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 14 September 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 Willows Private Nursing Home Pty Ltd, along with several nursing unions, sought approval of their enterprise agreement from the Fair Work Commission. The agreement, known as the 2017 NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement, was aimed at setting out the terms and conditions of employment for nurses and support staff at the private nursing home. The unions argued that the agreement was fair and reasonable, while the nursing home expressed concerns over certain provisions, particularly those relating to pay rates and conditions.

The primary legal issue before the Commission was whether the agreement met the requirements of the Fair Work Act 2009, specifically whether it was a "better off overall test" agreement. This test requires that the agreement must not disadvantage employees, on average, in terms of their wages and conditions compared to the applicable award or safety net. The Commission also had to consider whether the agreement complied with other relevant provisions of the Act, such as the "good faith" bargaining requirement.

The Commission found that the agreement met the better off overall test, as the evidence demonstrated that employees would not be worse off on average under the terms of the agreement compared to the applicable award. The Commission noted that the agreement provided for reasonable pay increases and improvements to conditions, which were supported by the unions and not opposed by the nursing home. The Commission was satisfied that the parties had engaged in good faith bargaining and that the agreement was made in good faith. Consequently, the Commission approved the enterprise agreement, finding that it was fair and reasonable.

The Fair Work Commission approved the 2017 NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement for The Willows Private Nursing Home Pty Ltd. This decision ensures that the agreement will govern the terms and conditions of employment for nurses and support staff at the nursing home, providing a framework for fair and reasonable industrial relations within the organisation.

The Willows Private Nursing Home Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established