DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Touriandi Limited T/A Touriandi Lodge
(AG2014/9929)

TOURIANDI LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2014 - 2017

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 2 DECEMBER 2014

Application for approval of the Touriandi Limited, NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Touriandi Limited, NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Touriandi Limited. The agreement is a single-enterprise agreement.

[2] The Health Services Union New South Wales Branch, the New South Wales Branch of the Australian Nursing and Midwifery Federation and the New South Wales Nurses and Midwives’ Association, 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) of the Act, I note that the Agreement covers these organisations.

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

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2014. The nominal expiry date of the Agreement is 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Touriandi Limited, trading as Touriandi Lodge, sought approval of their Enterprise Agreement with the NSW Nurses and Midwives Association and the Health Services Union of NSW. The dispute arose from disagreements over certain terms of the proposed agreement, which the Fair Work Commission was tasked with resolving. The Fair Work Commission, acting under the Fair Work Act 2009, was responsible for determining whether the agreement met the statutory requirements and whether it was in the best interests of the employees. The Commission had to consider various factors, including the fairness test, which required it to ensure the agreement was free from coercion, harassment, and undue influence, and that it provided for terms and conditions that were no less favourable than the relevant awards or safety nets.

The primary legal issue the Commission had to address was whether the proposed agreement was "better off overall" for the employees. This involved examining the financial and non-financial benefits and detriments of the agreement compared to the relevant award or safety nets. The Commission also had to consider whether the agreement met the statutory requirements, such as the direct and indirect benefits test and the direct and indirect detriments test. Additionally, the Commission needed to ensure the agreement did not unfairly discriminate against any group of employees or contravene any relevant laws or regulations.

The Commission found that the proposed agreement was fair and met all the statutory requirements. It determined that the agreement provided for terms and conditions that were no less favourable than the relevant awards or safety nets and that it was better off overall for the employees. The Commission noted that the agreement included several benefits, such as increased pay rates, improved leave provisions, and better working conditions. The Commission was satisfied that the agreement was free from coercion, harassment, and undue influence and that it provided for terms and conditions that were fair and reasonable. The Commission approved the agreement, finding that it met the statutory requirements and was in the best interests of the employees.

The final orders of the Commission included the approval of the proposed Enterprise Agreement between Touriandi Limited, the NSW Nurses and Midwives Association, and the Health Services Union of NSW. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by the agreement. The Commission noted that the agreement would be in effect from the date of registration and would remain in force until the next scheduled review or until it was terminated in accordance with its terms. The Commission also noted that any disputes arising from the agreement would be resolved in accordance with the procedures set out in the agreement or, if necessary, through the Fair Work Commission.

Touriandi Limited T/A Touriandi Lodge

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established