Touriandi Limited

[2024] FWCA 3344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Touriandi Limited

(AG2024/3262)

TOURIANDI LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER CRAWFORD	SYDNEY, 23 SEPTEMBER 2024

Application for approval of the Touriandi Limited, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Touriandi Limited, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Touriandi Limited. The Agreement is a single enterprise agreement.

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

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

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CaseChat Overview and Summary

The Federal Court of Australia recently heard an application for the approval of the Enterprise Agreement between Touriandi Limited, the NSW Nurses and Midwives Association (NSWNMA), and the Health Services Union NSW (HSU NSW). The parties were seeking the court's endorsement of the agreement which outlines the terms and conditions of employment for workers within the scope of the agreement. The application was brought under the Fair Work Act 2009, which governs the approval process for enterprise agreements in Australia.

The court had to determine whether the agreement met the statutory requirements for approval, including whether it provided for the proper resolution of employee disputes, and whether it was free from provisions that would have an adverse effect on employees. The court also needed to ensure that the agreement was genuinely an enterprise agreement, meaning it was made by the parties without any coercion, and that the process of making the agreement was fair and transparent.

The court found that the agreement satisfied all the necessary criteria for approval. It was determined that the agreement contained provisions that would facilitate the proper resolution of employee disputes, and that it did not include any provisions that would have an adverse effect on employees. Additionally, the court was satisfied that the agreement was genuinely an enterprise agreement, as it was made without any coercion and through a fair and transparent process. Consequently, the court approved the agreement, which will now govern the terms and conditions of employment for the workers involved.

The final orders of the court included the approval of the Enterprise Agreement between Touriandi Limited, NSWNMA, and HSU NSW for the period of 1 April 2023 to 31 March 2027. The agreement will now be binding on all employees covered by its terms, and will provide a framework for the resolution of employment-related disputes between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established