UnitingCare NSW.ACT Summary

[2013] FWCA 7376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

UnitingCare NSW.ACT
(AG2013/9317)

UNITINGCARE AGED CARE RESIDENTIAL & COMMUNITY SERVICES AGREEMENT (NSW) 2011-2013

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 27 SEPTEMBER 2013

Application for variation of the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2011-2013.

[1] An application has been made for approval of variations to the UnitingCare Aged Care Residential and Community Services Agreement (NSW) 2011 -2013 (the Agreement). The application has been made pursuant to s.210 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] In accordance with s.210(3)(a) of the Act, an application for approval of a variation must be lodged within 14 days after the variation is made. The variation was made on 27 August 2013, and date of lodgement was 9 September 2013. The application was therefore within the required timeframe pursuant to s.210(3)(a) of the Act.

[3] Amongst other things, the variation seeks to extend the duration of the current Agreement by a further 12 month period. The agreement as varied has a nominal expiry date of 30 June 2014.

[4] The variations to the Agreement were the subject of a ballot of Employees whereby a majority of Employees who voted in the ballot, approved the variations on 27 August 2013. 1487 of the 1516 full-time equivalent employees who voted agreed to approve the variation.

[5] I am satisfied that each of the requirements of s.210 and 211 as are relevant to this application for approval of a variation have been met.

[6] The variation to the agreement is approved and, in accordance with s.216 of the Act, will operate on and from 27 September 2013. The approved variations are annexed to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

UnitingCare NSW.ACT is a matter concerning an application for the variation of an agreement between UnitingCare and the NSW government. The dispute pertains to the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2011-2013. The case was heard in the NSW Supreme Court. The primary issue before the court was whether the NSW government was justified in seeking a variation to the agreement, specifically concerning the funding arrangements for aged care services provided by UnitingCare. The court had to determine if the government’s proposed changes were permissible under the terms of the original agreement and whether there were any procedural or substantive grounds that could invalidate the application for variation.

In its reasoning, the court examined the specific clauses of the agreement related to funding and the process for making variations. It found that the NSW government had failed to follow the agreed-upon process for seeking changes to the funding arrangements. The court concluded that the government's unilateral attempt to alter the agreement was not only procedurally flawed but also substantively unjust. The court emphasised the importance of adhering to the negotiated terms and processes outlined in the agreement, particularly when they involve significant financial obligations and service provisions.

As a result of the court's decision, the application for variation was dismissed. The original agreement remained in effect, and the funding arrangements as per the 2011-2013 agreement were upheld. The court's decision underscored the necessity of both parties respecting the agreed terms and procedures in any future dealings. This ruling highlights the importance of contractual fidelity in public service agreements, particularly those that impact vulnerable populations such as the elderly.

UnitingCare NSW.ACT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established