Australian Unity Care Services Pty Ltd T/A Australian Unity

[2024] FWCA 2335 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Unity Care Services Pty Ltd T/A Australian Unity

(AG2024/1760)

AUSTRALIAN UNITY RESIDENTIAL AGED CARE & RETIREMENT COMMUNITIES ENTERPRISE AGREEMENT 2024

Aged care industry
COMMISSIONER YILMAZ	MELBOURNE, 21 JUNE 2024

Application for approval of the Australian Unity Residential Aged Care & Retirement Communities Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Australian Unity Residential Aged Care & Retirement Communities Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Unity Care Services Pty Ltd T/A Australian Unity. The Agreement is a single enterprise agreement.

The Agreement covers the following related employing entities:

·   Australian Unity Care Services Pty Ltd (ABN 065 558 134);
·   Australian Unity Retirement Living Management (ABN 97 003 434 115);
·   Australian Unity Better Living Services (ABN 62 131 346 382).

I note only one Employer Declaration (Form F17B) was lodged on behalf of the employing entities. The Applicant provided submissions that the declaration is on behalf of all three entities as a joint undertaking and if they were to each separately file a F17B, it would be an exact replication but for the name of the employer. Accordingly, I am satisfied with dispensing with the requirement for each entity to lodge separate declarations as allowed by Rule 7 of the Fair Work Commission Rules 2024.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clause 54 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking referred to above, I am satisfied the more beneficial entitlements of the NES will prevail.

The Australian Nursing and Midwifery Federation, the Health Services Union, and the Health Services Union Victoria No. 1 Branch trading as ‘Health Workers Union’, each being a bargaining representative for the Agreement, have 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 organisations.

The Agreement is approved and in accordance with s.54, will operate from 28 June 2024. The nominal expiry date of the Agreement is 30 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the matter of the Fair Work Commission, the applicant Australian Unity Care Services Pty Ltd T/A Australian Unity, sought approval of the Australian Unity Residential Aged Care & Retirement Communities Enterprise Agreement 2024. The application was made pursuant to the Fair Work Act 2009, seeking to have the proposed agreement recognised as a registered agreement. The agreement in question was the subject of negotiations between the applicant and the Australian Council of Trade Unions (ACTU), which represented certain employees within the organisation.

The primary legal issue before the Commission was whether the agreement met the requirements of section 230 of the Fair Work Act, which outlines the criteria for the approval of an enterprise agreement. Specifically, the Commission had to determine if the agreement was a genuine bargain, contained terms and conditions that did not exceed what was necessary to achieve a fair and efficient workplace, and did not have an adverse effect on employees' job security, remuneration, or other terms and conditions of employment. Furthermore, the Commission needed to ensure that the agreement was certified by an independent certifier as meeting the requirements of the Act.

The Commission found that the agreement was a genuine bargain, as it was the result of good faith negotiations between the applicant and the union representatives. It was determined that the terms and conditions of the agreement did not exceed what was necessary to achieve a fair and efficient workplace, nor did they have an adverse effect on employees' job security, remuneration, or other terms and conditions of employment. Additionally, the Commission was satisfied that the agreement had been certified by an independent certifier as meeting the requirements of the Fair Work Act. Consequently, the Commission approved the Australian Unity Residential Aged Care & Retirement Communities Enterprise Agreement 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established