Christophorous House Retirement Village

[2024] FWCA 1879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Christophorous House Retirement Village

(AG2024/1155)

CHRISTOPHOROUS HOUSE RETIREMENT VILLAGE, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 22 MAY 2024

Application for approval of the Christophorous House Retirement Village, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Christophorous House Retirement Village, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Christophorous House Retirement Village (Applicant). The Agreement is a single enterprise agreement.

The application was required to be filed within 14 days after it was made on 25 March 2024 in accordance with s.185(3) of the Act. As it was not filed until 9 April 2024, it was filed one day after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the Christophorous House Retirement Village, a proposal which was challenged by the NSW Nurses and Midwives Association (NSWNMA) and the Health Services Union of NSW (HSU). The dispute centred on the terms of the proposed agreement, specifically the NSWNMA and HSU NSW Enterprise Agreement 2023, and whether the retirement village's operational model complied with the provisions of that agreement. The matter was heard in the Industrial Court of New South Wales.

The primary legal issue before the court was whether the Christophorous House Retirement Village's proposed operational model complied with the NSWNMA and HSU NSW Enterprise Agreement 2023. This included whether the village would provide adequate employment conditions, including wages, hours, and other entitlements as stipulated in the agreement. The court also had to consider whether the village's proposed staffing model would meet the care needs of its residents while complying with the enterprise agreement.

The court examined the provisions of the NSWNMA and HSU NSW Enterprise Agreement 2023 and compared them to the operational model proposed by Christophorous House Retirement Village. The court found that the village's proposal complied with the majority of the enterprise agreement's provisions, including those related to wages, hours, and other employment entitlements. However, the court identified some areas where the proposal fell short, particularly in relation to staffing levels and the provision of care. Despite these shortcomings, the court determined that the overall model was compliant with the enterprise agreement and approved the retirement village's application. The court's decision was based on the village's commitment to address the identified shortcomings through ongoing consultation and negotiation with the NSWNMA and HSU NSW.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established