DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boneham Aged Care Services Inc
(AG2020/1503)

BONEHAM AGED CARE SERVICES INC NURSING EMPLOYEES (AGED CARE) & ANMF-SA ENTERPRISE AGREEMENT 2019

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 22 JUNE 2020

Application for approval of the Boneham Aged Care Services Inc Nursing Employees (Aged Care) & ANMF-SA Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Boneham Aged Care Services Inc Nursing Employees (Aged Care) & ANMF-SA Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Boneham Aged Care Services Inc (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 12 June 2020.

[3] On 16 June 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 18 June 2020. The undertaking deals with the following topics:

• In relation to clause 7.4.4 (Personal Leave), an employee must give notice as soon as reasonably practicable, which may be at a time after the leave has started.

• In relation to clause 4.5.6.2 (Notice of Termination), if an employee who is 18 years old does not give appropriate notice, the Applicant will deduct wages due to the employee for an amount that is no more than one week’s wage.

• In relation to clause 8.2.5, if an employee undertakes mandatory training outside of their ordinary hours, the employee will be paid overtime.

• In relation to clauses 4.4.3, 6.6.1 and 6.6.2, casual employees will receive casual loading in addition to any other penalty.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The Australian Nursing and Midwifery Federation, 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.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] 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 31 January 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Boneham Aged Care Services Inc, the applicant sought approval of the Nursing Employees (Aged Care) & ANMF-SA Enterprise Agreement 2019. The application was made to the Fair Work Commission, a federal workplace relations tribunal. The dispute centred on the terms and conditions of employment for nurses within the aged care sector, specifically those employed by Boneham Aged Care Services Inc. The primary issue was whether the enterprise agreement proposed by the applicant and the Australian Nursing and Midwifery Federation - South Australia (ANMF-SA) complied with the relevant provisions of the Fair Work Act 2009.

The legal issues that the Commission was required to decide included whether the agreement satisfied the Fair Work Act's requirements for "genuine agreement," "independent advice," and "public interest" considerations. The Commission examined the process through which the agreement was negotiated, whether it was entered into without coercion, and if it provided fair and reasonable terms for the employees involved. Additionally, the Commission assessed if the agreement met the public interest criteria, particularly in relation to ensuring the provision of quality aged care services.

In its reasoning, the Commission found that the agreement had been negotiated in good faith and met the statutory criteria for genuine agreement and independent advice. The Commission highlighted that the agreement provided a fair and reasonable balance of rights and obligations for both the employees and the employer. It was noted that the agreement incorporated provisions that addressed the specific needs of aged care nursing employees, including provisions for wages, leave entitlements, and conditions of employment. The Commission concluded that the agreement did not prejudice the public interest, particularly in relation to the quality of aged care services provided by the applicant. Consequently, the Commission approved the enterprise agreement as it met all necessary legal requirements.

The final orders of the Commission were that the Nursing Employees (Aged Care) & ANMF-SA Enterprise Agreement 2019 be approved and registered. This decision ensures that the terms and conditions outlined in the agreement are legally binding on both Boneham Aged Care Services Inc and its nursing employees.

Boneham Aged Care Services Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established