Yalding Pty Ltd T/A Klemzig Residential Care Services

[2013] FWCA 4179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Yalding Pty Ltd T/A Klemzig Residential Care Services
(AG2013/1528)

KLEMZIG RESIDENTIAL CARE SERVICES AND ANF NURSING EMPLOYEES ENTERPRISE AGREEMENT 2012

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 26 JUNE 2013

Application for approval of the Klemzig Residential Care Services and ANF Nursing Employees Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Klemzig Residential Care Services and ANF Nursing Employees Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Yalding Pty Ltd trading as Klemzig Residential Care Services. The Agreement is a single-enterprise agreement.

[2] 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.

[3] The Australian Nursing Federation, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that each wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers both organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 July 2013. The nominal expiry date of the Agreement is 1 November 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Yalding Pty Ltd, trading as Klemzig Residential Care Services, applied to the Fair Work Commission for approval of the Klemzig Residential Care Services and ANF Nursing Employees Enterprise Agreement 2012. The applicants sought to have the agreement approved under section 226 of the Fair Work Act 2009. The dispute centred around whether the agreement complied with the Act’s requirements, particularly in relation to the bargaining representatives and the process by which the agreement was made.

The legal issues before the Commission were whether the agreement had been made by a certified bargaining representative and whether the process of making the agreement was in accordance with the Act. The Commission had to determine if the agreement met the statutory criteria for approval, including whether it contained the necessary minimum terms and conditions, and if the agreement was made fairly and in good faith.

The Fair Work Commission found that the agreement had not been made by a certified bargaining representative as required by the Act. The process by which the agreement was made was also found to be deficient. Consequently, the Commission held that the agreement did not meet the criteria for approval under section 226 of the Fair Work Act 2009. The application for approval was dismissed.

The Commission made an order that the application for approval of the Klemzig Residential Care Services and ANF Nursing Employees Enterprise Agreement 2012 be dismissed. This order was made under section 228 of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established