Bankstown City Aged Care Limited

[2024] FWCA 1446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bankstown City Aged Care Limited

(AG2024/639)

BCAC, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 19 APRIL 2024

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

An application has been made for approval of an enterprise agreement known as the BCAC, 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 Bankstown City Aged Care 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 application before the Industrial Relations Commission of New South Wales was for the approval of the 2023 Enterprise Agreement between Bankstown City Aged Care Limited (BCAC), the NSW Nurses and Midwives Association (NSWNMA), and the Health Services Union of NSW (HSU NSW). The agreement sought to regulate the terms and conditions of employment for BCAC's nursing and midwifery staff. The NSWNMA and HSU NSW jointly represented the employees, and BCAC was the employer party. The primary issue before the commission was whether the proposed terms of the enterprise agreement were fair and reasonable, as required by the relevant industrial relations legislation.

The commission examined the agreement's provisions, considering whether they provided a fair and equitable outcome for both the employees and the employer. This involved assessing the agreement's compliance with the relevant industrial instruments and ensuring that the terms reflected a balance of interests. The commission also evaluated whether the agreement met the criteria for approval, such as whether it had been negotiated in good faith, provided for a fair and efficient workplace, and included provisions for dispute resolution. The commission's decision hinged on whether the agreement could be considered as meeting the legislative standards for fairness and reasonableness.

In its decision, the commission found that the proposed agreement was fair and reasonable, meeting the statutory criteria for approval. The commission noted the extensive negotiations between the parties, the inclusion of key workplace provisions, and the agreement's alignment with the broader industrial framework. The commission was satisfied that the terms provided for a balanced approach, addressing the needs of both the employees and the employer. Consequently, the commission approved the enterprise agreement, allowing it to come into effect from the specified date. This decision was based on the comprehensive evaluation of the agreement's provisions and their compliance with the industrial relations laws.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established