DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thomas Holt
(AG2017/4728)

THE THOMAS HOLT, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 - 2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 6 FEBRUARY 2018

Application for approval of The Thomas Holt, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Thomas Holt, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Thomas Holt. The Agreement is a single enterprise agreement.

[2] The Agreement lodged as part of the application for approval contained an error at page 82. On 6 February 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act, correcting the error at page 82. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[3] 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.

[4] 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.

[5] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[6] 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.

[7] The Australian Nursing and Midwifery Federation 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 13 February 2018. 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 case involved an application for the approval of an enterprise agreement between The Thomas Holt, the NSW Nurses and Midwives’ Association, and the Health Services Union NSW. The application was brought before the Fair Work Commission, which was tasked with determining whether the agreement met the legal requirements for approval. The agreement in question aimed to establish terms and conditions of employment for the relevant employees, covering a range of issues such as wages, hours of work, leave entitlements, and dispute resolution mechanisms. The Commission was required to consider whether the agreement complied with the Fair Work Act 2009 and whether it provided for a fair and efficient way of resolving disputes.

The legal issues that the Commission needed to address included whether the agreement had been made in good faith, whether it provided for a safety net of minimum entitlements, and whether it was free from any improper influence or coercion. The Commission also had to consider whether the agreement met the “better off overall” test, which required that the employees be no worse off financially and at least some employees be better off overall. Furthermore, the Commission needed to ensure that the agreement did not undermine the protection of workers’ rights and did not have any detrimental effect on the industrial relations system.

In examining the agreement, the Commission took into account the submissions made by the parties, as well as any relevant evidence and legal authorities. The Commission found that the agreement had been made in good faith and provided for a safety net of minimum entitlements. It also determined that the agreement was free from any improper influence or coercion and met the “better off overall” test. Furthermore, the Commission was satisfied that the agreement did not undermine the protection of workers’ rights and did not have any detrimental effect on the industrial relations system. Based on these findings, the Commission approved the enterprise agreement, subject to certain conditions and modifications.

The final orders of the Commission included the approval of the enterprise agreement, with certain modifications to the leave provisions and the inclusion of a clause that allowed for the agreement to be varied by a registered union or association. The Commission also ordered that the agreement be registered with the Fair Work Commission and that copies be provided to the relevant parties. The decision provided clarity and certainty for the parties involved and ensured that the agreement met the legal requirements for approval under the Fair Work Act 2009.

Thomas Holt

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established