Amaroo Care Services Inc T/A Amaroo Village

[2022] FWCA 1959

[2022] FWCA 1959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Amaroo Care Services Inc T/A Amaroo Village

(AG2022/1710)

Amaroo Care Services Inc Nurses Enterprise Agreement 2021

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 16 JUNE 2022

Application for approval of the Amaroo Care Services Inc Nurses Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Amaroo Care Services Inc Nurses Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Amaroo Care Services Inc T/A Amaroo Village (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 6 June 2022.

1. On 8 June 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. In the Applicant’s Form F17 Declaration, the Applicant indicated that the notification time for the Agreement was 26 October 2021, yet the Notice of Employee Representation Rights (NERR) was not distributed until 4 January 2022, ten weeks after the notification time. During the conference, the Applicant indicated that the company had experienced significant personnel change during that period, including an entirely new Human Resources Department, none of which had knowledge of the previous bargaining. I am satisfied that given the significant staff turnover, there had effectively been a fresh decision to begin bargaining for an agreement, and as such, I am satisfied that it is appropriate to exercise my discretion under s.586 of the Act to amend the Form F17 such that notification time for the Agreement was 4 January 2022.

1. Employees were provided with the details of the vote by email on 16 May 2022. Given that voting for the Agreement commenced on 23 May 2022, it does not appear that employees had seven clear days’ notice of the details of the vote as required by s.180(4) of the Act. I do not believe that the slightly delayed provision of details of the vote had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. The Applicant has submitted an undertaking in the required form dated 15 June 2022. The undertaking deals with the following topics:

·   Clauses 8.8 and 21.7.3 of the Agreement shall not operate in a manner inconsistent with ss324-326 of the Act.

· Clause 8.10 of the Agreement shall not permit summary dismissal except where the employee has engaged in serious misconduct as defined in the Fair Work Regulations 2009.

·   Employees taking personal leave may provide forms of evidence that would satisfy a reasonable person.

·   Employees will be entitled to the taking of compassionate leave for stillbirth and/or miscarriage as provided for in the Act.

·   Employees will have access to five days of unpaid leave for family/domestic violence leave as provided by s.106A of the Act.

·   Employees will be entitled to be absent from their employment on a public holiday, however may be requested to work a public holiday under reasonable circumstances.

·   The company will not engage employees under split shifts.

·   Employees will be paid for a minimum of two hours for attending training outside of ordinary hours.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not object to the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Australian Nursing and Midwifery Federation (ANMF), 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

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