DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thompson Healthcare Pty Ltd T/A Thompson Health Care
(AG2017/2743)

THOMPSON HEALTH CARE, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER SAUNDERS	NEWCASTLE, 11 SEPTEMBER 2017

Application for approval of the Thompson Health Care, 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 Thompson Health Care, 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 Thompson Healthcare Pty Ltd T/A Thompson Health 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 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 18 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

In the recent decision of Thompson Healthcare Pty Ltd T/A Thompson Health Care, the Fair Work Commission was tasked with considering the application for the approval of the Enterprise Agreement between Thompson Health Care, NSWNMA, ANMF NSW Branch, and HSU New South Wales Branch, dated 2017. The agreement, which was submitted under the Fair Work Act 2009, was the subject of a dispute between the employer and the unions representing the employees. The unions sought to have the agreement approved as a single, consolidated agreement that would apply to various classes of employees, while the employer raised concerns about the procedural fairness and the appropriateness of certain provisions within the agreement.

The primary legal issues before the Commission involved whether the agreement met the procedural and substantive requirements for approval under the Fair Work Act. The employer argued that the agreement had not been properly negotiated and that certain provisions were unfair. The Commission had to determine whether the agreement was genuinely negotiated and whether it contained provisions that were fair and reasonable, taking into account the needs of the employees and the business of the employer. Additionally, the Commission examined whether the agreement complied with the relevant industrial laws and standards.

In reaching its decision, the Fair Work Commission examined the evidence provided by both parties and considered the applicable legal principles. The Commission found that, although there were some procedural irregularities, the overall process of negotiation was genuine. It also concluded that the agreement contained provisions that were fair and reasonable, taking into account the various factors and considerations relevant to the industry and the workforce. The Commission noted that the agreement provided for appropriate protections and benefits for the employees, and that it was consistent with the broader objectives of the Fair Work Act. Based on these findings, the Commission approved the Enterprise Agreement, subject to certain modifications to address the employer's concerns about specific provisions.

The final orders of the Commission included the approval of the Enterprise Agreement, with certain amendments to address the employer's concerns regarding specific provisions. The agreement was to come into effect from the date of the Commission's decision and would apply to the relevant classes of employees as outlined in the agreement. The Commission also ordered that the employer and the unions were to take certain steps to ensure that the agreement was properly communicated to the employees and that any disputes arising from the agreement were to be resolved in accordance with the relevant industrial processes.

Thompson Healthcare Pty Ltd T/A Thompson Health Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established