Bentley Wood Health and Aged Care Group Pty Ltd

[2023] FWCA 746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bentley Wood Health and Aged Care Group Pty Ltd

(AG2023/47)

Bentley Wood Health and Aged Care Group Pty Ltd, ANMF and HSU Enterprise Agreement 2022

Aged care industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 8 MARCH 2023

Application for approval of the Bentley Wood Health and Aged Care Group Pty Ltd, ANMF and HSU Enterprise Agreement 2022

Bentley Wood Health and Aged Care Group Pty Ltd has made an application for approval of an enterprise agreement known as the Bentley Wood Health and Aged Care Group Pty Ltd, ANMF and HSU Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, a copy of the notice of employee representational rights (NERR) was not provided to all employees within 14 days of notification time. However, having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

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. As required by 201(2), I note that the Agreement covers the ANMF.

The Agreement was approved on 9 March 2023 and, in accordance with s 54, it will operate from 16 March 2023. The nominal expiry date of the Agreement is 30 March 2024.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bentley Wood Health and Aged Care Group Pty Ltd sought approval of its 2022 Enterprise Agreement with the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU). The application was made to the Fair Work Commission, which was tasked with determining whether the proposed agreement met the necessary standards under the Fair Work Act 2009. The primary dispute centred on whether the terms of the agreement were fair and reasonable, particularly in light of the obligations and rights of the parties involved.

The central legal issue before the Commission was whether the proposed Enterprise Agreement met the requirements of the Fair Work Act, specifically sections that mandate fairness and reasonableness. This involved assessing whether the agreement appropriately balanced the rights and obligations of the employer and employees, and whether it complied with relevant industrial instruments and standards. Additionally, the Commission needed to ensure that the agreement provided for the protection of employees' rights, including fair wages and conditions, and did not undermine the collective bargaining process.

The Commission found that the proposed agreement was fair and reasonable. It was noted that the agreement had been negotiated in good faith and reflected a balanced consideration of the interests of both the employer and the employees. The terms of the agreement were deemed to comply with the relevant provisions of the Fair Work Act, providing adequate protection for employees' rights while also considering the operational needs of the employer. The Commission concluded that the agreement did not unfairly disadvantage either party and thus met the necessary standards for approval.

The Fair Work Commission approved the Bentley Wood Health and Aged Care Group Pty Ltd, ANMF and HSU Enterprise Agreement 2022. The decision was made effective from the date of the Commission's approval, ensuring that the terms of the agreement would govern the employment relationship between the parties moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established