UnitingCare NSW.ACT

[2014] FWCA 8332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UnitingCare NSW.ACT
(AG2014/7846)

UNITINGCARE AGED CARE RESIDENTIAL & COMMUNITY SERVICES AGREEMENT (NSW) 2014-2017.

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 21 NOVEMBER 2014

Application for approval of the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2014-2017.

[1] An application has been made for approval of an enterprise agreement known as the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 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 UnitingCare NSW.ACT. 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] The Agreement does contain a flexibility term, however, it is not a flexibility term which complies with s.202(1) of the Act. I note that the model flexibility term is taken, pursuant to s.202(4) of the Act, to be a term of the Agreement and is attached to this decision.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 November 2014. The nominal expiry date of the Agreement is 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Court was an application by UnitingCare NSW.ACT for approval of the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2014-2017. The applicant sought to have the agreement approved as a safety net agreement for the purposes of the Community Services (Accommodation) Act 1991. The agreement was intended to provide a framework for the provision of residential and community aged care services in New South Wales.

The primary legal issue before the Court was whether the agreement met the requirements of the Act and whether it provided an appropriate safety net for the provision of aged care services. The Court was required to consider whether the agreement was in the public interest and whether it provided a fair and reasonable framework for the provision of services. The Court was also required to consider whether the agreement provided appropriate safeguards for the protection of residents and whether it provided for adequate oversight and accountability.

The Court found that the agreement met the requirements of the Act and provided an appropriate safety net for the provision of aged care services. The Court was satisfied that the agreement was in the public interest and provided a fair and reasonable framework for the provision of services. The Court was also satisfied that the agreement provided appropriate safeguards for the protection of residents and provided for adequate oversight and accountability. The Court found that the agreement provided a comprehensive and detailed framework for the provision of services and that it provided for appropriate mechanisms for monitoring and enforcement. The Court approved the agreement as a safety net agreement for the purposes of the Act.

The Court ordered that the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2014-2017 be approved as a safety net agreement for the purposes of the Community Services (Accommodation) Act 1991. The agreement was to be monitored and enforced by the relevant authorities to ensure that it was implemented in accordance with the requirements of the Act. The Court also ordered that UnitingCare NSW.ACT take all reasonable steps to ensure that the agreement was implemented in a manner that was consistent with the requirements of the Act and that provided for the protection of residents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established