Bupa Aged Care Australia Pty Ltd Summary

[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

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.

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.

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.

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

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission (FWC) was tasked with approving an enterprise agreement between Bupa Aged Care Australia Pty Ltd and two unions, the Australian Nursing and Midwifery Federation (ANMF) and the Health Workers Union (HWU). The agreement, known as the Bupa Aged Care Australia, ANMF and HWU Victorian Enterprise Agreement 2024, was submitted for approval under section 234 of the Fair Work Act 2009. The FWC had to determine whether the agreement met the requirements for approval and whether it was in the best interests of the employees covered by the agreement.

The primary legal issue the FWC had to address was whether the enterprise agreement complied with the provisions of the Fair Work Act. This involved examining whether the agreement contained all the necessary elements, such as the bargaining dates, the names and affiliations of the bargaining representatives, and whether the agreement was made in good faith. Additionally, the FWC needed to ensure that the agreement did not unfairly discriminate against any group of employees and that it provided for the protection of employees' rights. The FWC also considered whether the agreement would promote harmonious, productive and cooperative workplace relationships.

The FWC found that the enterprise agreement was made in good faith and contained all the necessary elements required by the Fair Work Act. The FWC noted that the agreement provided for fair and reasonable terms and conditions for the employees, including provisions for wages, leave, and other employment-related matters. The FWC was satisfied that the agreement would promote harmonious, productive, and cooperative workplace relationships and that it did not unfairly discriminate against any group of employees. As such, the FWC approved the Bupa Aged Care Australia, ANMF and HWU Victorian Enterprise Agreement 2024.

The FWC issued an approval order for the enterprise agreement, effective from 1 April 2024. The agreement will now apply to the employees covered by it, and the terms and conditions set out in the agreement will govern their employment. The FWC's approval of the agreement ensures that the employees will have a fair and reasonable workplace agreement that promotes good industrial relations practices.

Bupa Aged Care Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established