Barunga Village Inc

[2022] FWCA 1542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Barunga Village Inc

(AG2022/1290)

Barunga Village Inc Nursing Employees (Aged Care) & ANMF Enterprise Agreement 2022

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 9 MAY 2022

Application for approval of the Barunga Village Inc Nursing Employees (Aged Care) & ANMF Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Barunga Village Inc Nursing Employees (Aged Care) & ANMF Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Barunga Village Inc (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 4 May 2022 and was determined on the papers.

It is noted that the Agreement allows for a number of deductions which potentially appear inconsistent with the Act, including:

· Clause 5.7.7(b) of the Agreement states that upon resignation, any over-expenditure may be deducted from the employees’ final payments or upon demand.

· Clause 7.1.8(d) of the Agreement states that upon termination, where an employee has not accrued annual leave already taken, the employer may deduct money from the employee’s termination payment equal to the amount of leave taken in advance.

· Clause 8.1.12 of the Agreement states that where an employee resigns within 1 year of completing training costing the employer more than $1,500 the employee authorises the employer to deduct from any termination payment a pro-rated amount of the training costs.

To the extent that the above clauses are inconsistent with ss324-326 of the Act, they will have no effect.

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.

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

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 21 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission sought approval of the Barunga Village Inc Nursing Employees (Aged Care) & ANMF Enterprise Agreement 2022. Barunga Village Inc is a community organisation that operates aged care facilities in the Northern Territory. The application was brought by the organisation and the Australian Nursing and Midwifery Federation. The legal issues that arose centred on whether the agreement complied with the Fair Work Act and the Fair Work Regulations. Specifically, the Commission needed to determine if the agreement met the requirements for proper negotiation, if it adhered to the relevant industrial provisions, and if it complied with the procedural requirements of the Fair Work Act.

The Commission examined the evidence provided regarding the negotiation process and found that the agreement was the result of genuine and good faith bargaining. The evidence demonstrated that the parties had engaged in a comprehensive negotiation process, addressing various issues relevant to the nursing employees. The agreement was also found to be in compliance with the industrial provisions of the Fair Work Act, including provisions related to minimum wages, penalties rates, and leave entitlements. Furthermore, the Commission concluded that the procedural requirements of the Fair Work Act had been met, including the requirement for the agreement to be in writing and for the application to be properly lodged.

In light of the findings, the Fair Work Commission approved the Barunga Village Inc Nursing Employees (Aged Care) & ANMF Enterprise Agreement 2022. The Commission determined that the agreement was fair and reasonable, taking into account the needs of the nursing employees and the operational requirements of the organisation. The agreement provides for a range of benefits, including wages, penalties rates, and leave entitlements, as well as provisions for dispute resolution and other industrial matters. The approval of the agreement ensures that the nursing employees of Barunga Village Inc will receive fair and equitable terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established