Australian Nursing and Midwifery Federation

[2015] FWCA 7872

[2015] FWCA 7872

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Australian Nursing and Midwifery Federation
(AG2015/5814)

ASSISI CENTRE AGED CARE ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER CRIBB	MELBOURNE, 27 NOVEMBER 2015

Application to vary an agreement to remove an ambiguity or uncertainty.

[1] This matter is an application by the Australian Nursing & Midwifery Association (ANMF), under section 217 of the Fair Work Act 2009 (the Act), to vary the Assisi Centre Aged Care Agreement 2014 1(the Agreement) in order to remove an ambiguity or an uncertainty.

[2] The application is a consent application between the ANMF and Assisi Centre Aged Care (the employer). The Health Services Union of Australia (HSU) has advised the Fair Work Commission that it supports the application by the ANMF.

[3] Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:

“(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[4] In this matter, there are a number of ambiguities or uncertainties that are sought to be rectified. These are as follows:

(a) Variation of clause 16 of the Agreement by its deletion and insertion of a new clause 16. This will provide a more reliable provision for calculating a year of service for pay point progression.

(b) Variation of clause 22 of the Agreement by deleting the reference to Schedule E and inserting Schedule C. This will correct an error.

(c) Deletion of clause 34.4.2(b) of the Agreement to remove an ambiguity or an uncertainty in relation to the payment for casual enrolled nurses and aged care employees when working on public holidays.

(d) Variation of Schedule B of the Agreement to insert the classification definitions for aged care employees. This will provide certainty in relation to the classification definitions for aged care employees.

[5] On the basis of the material before me, I am satisfied that there are the ambiguities or uncertainties as submitted by the ANMF and as agreed/supported by Assisi Centre Aged Care and the HSU.

[6] Accordingly, the application is granted and the variations, as sought, will operate from 27 November 2015. The consolidated version of the Agreement, as varied, is attached to this decision.

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