Bupa Aged Care Australia Pty Ltd

[2025] FWCA 626

[2025] FWCA 626 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Bupa Aged Care Australia Pty Ltd

(AG2024/5258)

BUPA AGED CARE AUSTRALIA, ANMF AND HWU VICTORIAN ENTERPRISE AGREEMENT 2024

Aged care industry
COMMISSIONER MIRABELLA	MELBOURNE, 18 FEBRUARY 2025

Application for approval of the Bupa Aged Care Australia, ANMF and HWU Victorian Enterprise Agreement 2024

1. Application by Bupa Aged Care Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Bupa Aged Care Australia, ANMF and HWU Enterprise Agreement 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 7 May 2024 and the Agreement was made on 16 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES): 

·   Clause 16.3: Maximum weekly hours  

·   Clause 50.3(d): Personal/carer’s leave – notice requirements  

·   Clause 61.5: Abandonment of employment  

1. However, noting clause 5.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.  

1. The Applicant also made a request for an error in the Agreement to be remedied. The Applicant submitted that the heading ‘% of Casual Rate of Pay’ in the continuation of the table in clause 46.1 has been positioned in error above the row titled ‘Casual Aged Care Employees’. The Applicant submitted the heading should be positioned above the row titled ‘Casual Nursing Employees’. Section 218A(1) provides that the Commission may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). Pursuant to s.218A(2), the Commission may vary an enterprise agreement on its own initiative or on application by one or more of the employers covered by the Agreement. Accordingly, I am satisfied that it is appropriate to amend clause 46.1 of the Agreement as this is an obvious error within the meaning of s.218A(1). I therefore amend clause 46.1 and move the heading ‘% of Casual Rate of Pay’ to be positioned above the row titled ‘Casual Nursing Employees’. A copy of the Agreement as amended is published with this decision. For the purposes of s.218A(3) the variation operates from the date the Agreement commences operation. 

1. The Australian Nursing and Midwifery Federation and the Health Services Union Victoria No 1 Branch, trading as the Health Workers Union being bargaining representatives for the Agreement, have each given notice under s 183 of the FW Act that they want the Agreement to cover them. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisations.

1. The Agreement is approved and, in accordance with s.54, will operate from 25 February 2025. The nominal expiry date of the Agreement is 30 April 2027.  

COMMISSIONER

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