DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Touriandi Limited T/A Touriandi Lodge
(AG2017/4710)

TOURIANDI LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 - 2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 16 FEBRUARY 2018

Application for approval of the Touriandi Limited, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Touriandi Limited, 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 Touriandi Limited T/A Touriandi Lodge. 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 13 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 23 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 matter before the Fair Work Commission involved Touriandi Limited T/A Touriandi Lodge, the New South Wales Nurses and Midwives' Association (NSWNMA), and the Health Services Union of Australia (HSU NSW). The primary dispute pertained to the application for the approval of the Touriandi Limited, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020. The Commission was tasked with determining whether the agreement met the necessary criteria for registration under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement was genuinely a product of genuine agreement, whether it complied with the provisions of the Fair Work Act, and whether it met the standards of procedural fairness. Specifically, the Commission had to consider the extent to which the parties had genuinely negotiated the terms of the agreement and whether the agreement provided for fair and reasonable terms and conditions of employment. Furthermore, the Commission needed to ensure that the agreement adhered to the relevant provisions of the Fair Work Act, including those related to procedural fairness and the avoidance of protected industrial action.

The Commission found that the agreement had been genuinely negotiated and reflected the terms and conditions agreed upon by the parties. The Commission noted that the evidence presented demonstrated that both parties had engaged in good faith negotiations and had reached a consensus on the terms of the agreement. Additionally, the Commission was satisfied that the agreement complied with the requirements of the Fair Work Act and provided for fair and reasonable terms and conditions of employment. The Commission emphasised the importance of the procedural fairness in the negotiation process and found that both parties had acted appropriately in reaching the agreement. Consequently, the Commission approved the enterprise agreement for registration.

Touriandi Limited T/A Touriandi Lodge

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established