Australian Nursing Home Foundation Limited

[2024] FWCA 1993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Nursing Home Foundation Limited

(AG2024/1290)

ANHF, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 31 MAY 2024

Application for approval of the ANHF, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the ANHF, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Australian Nursing Home Foundation Limited (Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Australian Nursing Home Foundation Limited, sought the approval of the Fair Work Commission (FWC) for the proposed Enterprise Agreement with the New South Wales Nurses and Midwives' Association (NSWNMA) and Health Services Union (HSU NSW) for 2023. The application was heard by Deputy President O'Brien, who considered the agreement in light of the Fair Work Act and related regulations. The main issue before the court was whether the agreement complied with the legal requirements for approval and if it met the 'better off overall test' (BOOT). The FWC needed to determine whether the proposed terms were in the best interests of the employees, considering both the direct and indirect benefits, as well as any potential detriments.

Deputy President O'Brien examined the various provisions of the agreement, including wages, working conditions, and dispute resolution mechanisms. The court took into account submissions from the parties involved and relevant industry benchmarks. The Deputy President found that the agreement provided for a fair and reasonable increase in wages and improvements to working conditions that were consistent with industry standards. Additionally, the dispute resolution mechanisms were deemed adequate and balanced. The court concluded that the agreement met the BOOT, as the overall benefits to the employees outweighed any potential detriments.

Consequently, Deputy President O'Brien approved the application for the Enterprise Agreement. The decision was based on the comprehensive analysis of the agreement's provisions and their alignment with the legal requirements and the interests of the employees. The Deputy President emphasised the importance of the BOOT in ensuring that the agreement provided genuine benefits to the workforce. The court's approval of the agreement was a testament to its fairness and reasonableness, providing a solid foundation for improved industrial relations within the nursing home sector.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established