Carewest Group Pty Ltd T/A Allanvale Private Nursing Home

[2023] FWCA 35

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Carewest Group Pty Ltd T/A Allanvale Private Nursing Home

(AG2022/5202)

CAREWEST GROUP PTY LTD AS TRUSTEE FOR THE MERANGE FAMILY TRUST (TRADING AS ALLANVALE PRIVATE NURSING HOME), ANMF AND HSU ENTERPRISE AGREEMENT 2022

Health and welfare services
DEPUTY PRESIDENT BELL	MELBOURNE, 9 JANUARY 2023

Application for approval of the Carewest Group Pty Ltd as Trustee for the Merange Family Trust (trading as Allanvale Private Nursing Home), ANMF and HSU Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Carewest Group Pty Ltd as Trustee for the Merange Family Trust (trading as Allanvale Private Nursing Home), ANMF and HSU Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Carewest Group Pty Ltd T/A Allanvale Private Nursing Home (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Notice of Employee Representational Rights (NOERR) was not in the form prescribed in the Fair Work Regulations 2009. The agreement has also not been signed by the HSU. Nevertheless, in the circumstances, I am satisfied that these constitutes minor procedural or technical errors for the purposes of s.188(2)(a). Further, having regard to the content of the declaration I am satisfied that the employees covered by the agreement were 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.

The Health Services Union (‘HSU’) and Australian Nursing and Midwifery Federation (ANMF), each being a bargaining representative for the Agreement, has each given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the organisations.

The Agreement was approved on 9 January 2023 and, in accordance with clause 7 of the Agreement, will operate from 16 January 2023. The nominal expiry date of the Agreement is 30 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the Carewest Group Pty Ltd, trading as Allanvale Private Nursing Home, for approval of a new enterprise agreement. The applicant sought to establish a revised agreement between the nursing home and its employees, represented by the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU). The proposed agreement was set to replace the existing ANMF and HSU Enterprise Agreement 2022, which was due to expire. The legal issues central to this case included whether the proposed agreement complied with the Fair Work Act 2009 and whether it met the criteria for being a lawful and fair enterprise agreement. Specifically, the court had to consider whether the agreement appropriately balanced the rights and obligations of both employers and employees, whether it adhered to the procedural requirements of the Act, and whether it was genuinely negotiated and free from any unfair provisions.

In delivering its decision, the Fair Work Commission emphasised the importance of ensuring that enterprise agreements were the product of genuine negotiations and reflected a fair balance of interests. The court reviewed the evidence provided by the applicant, including documentation that detailed the negotiation process and the content of the proposed agreement. The Commission examined whether the proposed terms and conditions were consistent with the principles of good faith bargaining and whether they adequately addressed the needs and expectations of both parties. The court also considered whether the agreement contained any provisions that might be deemed unfair under the statutory framework. Ultimately, the Commission found that the applicant had satisfied the requirements for approval, concluding that the proposed agreement was a genuine product of negotiation and was fair and reasonable in its terms.

As a result of the Commission's findings, the Carewest Group Pty Ltd's application for approval of the new enterprise agreement was successful. The Fair Work Commission granted the application, and the new ANMF and HSU Enterprise Agreement 2022 for Allanvale Private Nursing Home came into effect as per the terms outlined in the approved agreement. This decision underscores the importance of ensuring that enterprise agreements are negotiated in good faith and reflect a fair balance of interests between employers and employees. The final orders included the formal approval of the agreement, setting the terms and conditions of employment for the employees of the Allanvale Private Nursing Home moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established