Alwyn Holdings Pty Ltd Summary

[2024] FWCA 2355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Alwyn Holdings Pty Ltd

(AG2024/1626)

ALWYN REHABILITATION HOSPITAL, HSU NSW/ACT/QLD BRANCH ENTERPRISE AGREEMENT 2023

Healthcare industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 24 JUNE 2024

Application for approval of the Alwyn Rehabilitation Hospital, HSU NSW/ACT/QLD Branch Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Alwyn Rehabilitation Hospital, HSU NSW/ACT/QLD Branch Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Alwyn Holdings Pty Ltd. The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.

The application was lodged a day outside the time required by s 185(3)(a). In the circumstances I consider it fair to extend the period in which the application must be made by one day in accordance with s 185(3)(b).

Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award. Here the relevant award is the Health Professionals and Support Services Award 2020 (the Award).

There was some correspondence with the applicant about the way rates of pay were expressed in the Agreement. Given the explanations provided by the applicant and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met.

The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the explanations set out above and the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186 and 187 are met.

The Health Servies Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 24 June 2024 and, in accordance with s.54, will operate from 1 July 2024. The nominal expiry date of the Agreement at clause 1.3 is 1 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Alwyn Holdings Pty Ltd applied for the approval of the Alwyn Rehabilitation Hospital, HSU NSW/ACT/QLD Branch Enterprise Agreement 2023 (the Agreement), as required by section 185 of the Fair Work Act 2009. The application was made a day outside the specified period, but the Deputy President extended this period by one day under section 185(3)(b) of the Act. The Health Services Union, NSW/ACT/QLD Branch, which is a bargaining representative for the Agreement, has indicated its desire for the Agreement to cover it, as per section 183 of the Act.

The legal issues before the Deputy President were whether the Agreement met the requirements of sections 186 and 187 of the Act. Specifically, the Deputy President had to be satisfied that the Agreement passed the better off overall test (BOOT) as required by section 186(2)(d), and that the group of employees covered by the Agreement was fairly chosen. The Deputy President also needed to consider whether the Agreement was to be approved as it covered the organisation.

After reviewing the explanations provided by Alwyn Holdings Pty Ltd regarding the rates of pay in the Agreement, and taking into account the types of employment and patterns of work of the employees, the Deputy President was satisfied that the BOOT was met. The Deputy President concluded that the group of employees covered by the Agreement was fairly chosen, and all requirements of sections 186 and 187 of the Act were met. Consequently, the Agreement was approved and will operate from 1 July 2024, with a nominal expiry date of 1 January 2026.

The Fair Work Commission approved the Alwyn Rehabilitation Hospital, HSU NSW/ACT/QLD Branch Enterprise Agreement 2023 on 24 June 2024. The Agreement will operate from 1 July 2024 and will expire on 1 January 2026, subject to any further legal proceedings or changes in the law.

Alwyn Holdings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established