Carinya Lodge Homes Inc

[2023] FWCA 898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Carinya Lodge Homes Inc

(AG2023/489)

CARINYA LODGE HOMES INC., ANMF AND HSU ENTERPRISE AGREEMENT 2021

Aged care industry
DEPUTY PRESIDENT EASTON	SYDNEY, 24 MARCH 2023

Application for approval of the Carinya Lodge Homes Inc., ANMF and HSU Enterprise Agreement 2021.

Carinya Lodge Homes Inc (the Employer) has made an application for the approval of the Carinya Lodge Homes Inc., ANMF and HSU Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 53.2 – Shift Work and Clause 54.5(f) – Personal/Carer’s Leave are potentially inconsistent with the National Employment Standards (NES). The Employer’s submissions have resolved the issue with Clause 53.2 and the undertaking ensures that Clause 54.5(f) will not be applied in a matter contrary to s.107 of the Act.

The Australian Nursing and Midwifery Federation (ANMF) and Health Services Union (HSU) were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the ANMF and HSU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 March 2023. The nominal expiry date of the Agreement is 31 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) brought an application for the approval of the Carinya Lodge Homes Inc. Enterprise Agreement 2021. The applicant employers, Carinya Lodge Homes Inc., opposed the application on various grounds, including concerns about the agreement's impact on the operational efficiency and financial sustainability of their business. The matter was heard by a delegate of the Commission, who needed to determine whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issues before the delegate were whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Procedurally, the delegate had to consider whether proper consultation had taken place and if the agreement was genuinely negotiated. Substantively, the delegate had to assess if the agreement provided for terms and conditions that met the safety net and did not undermine the operation of the safety net provisions. The delegate also had to consider if the agreement included provisions that were not contrary to public policy.

The delegate concluded that the agreement had been genuinely negotiated and met the procedural requirements. Regarding the substantive provisions, the delegate found that the agreement did not undermine the operation of the safety net and provided for terms and conditions that met the safety net. The delegate also determined that the agreement did not contain provisions that were contrary to public policy. Consequently, the delegate approved the Carinya Lodge Homes Inc. Enterprise Agreement 2021, finding it to be in accordance with the legal standards required for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established