Clarence Village Limited

[2024] FWCA 1434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Clarence Village Limited

(AG2024/586)

CLARENCE VILLAGE LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 19 APRIL 2024

Application for approval of the Clarence Village Limited, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Clarence Village Limited, 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 Clarence Village Limited (Applicant). The Agreement is a single enterprise agreement.

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
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CaseChat Overview and Summary

In the recent case of Clarence Village Limited, the Australian Industrial Relations Commission was presented with an application for the approval of a new enterprise agreement between the applicant and two unions. The applicant, Clarence Village Limited, sought to enter into a new enterprise agreement with the NSW Nurses and Midwives' Association and the Health Services Union of NSW. The unions represented the employees within the organisation. The nature of the dispute centred around the terms and conditions of employment within the agreement and whether they complied with the necessary legislative framework.

The court was required to determine whether the proposed agreement met the statutory requirements set out in the Fair Work Act 2009, particularly focusing on whether it contained the necessary "no disadvantage" and "better off overall" tests. This involved examining whether the terms of the agreement provided employees with at least the same conditions as they would have under the relevant award or national employment standards, and whether it provided them with a net benefit. The court also needed to assess whether the agreement had been genuinely negotiated and if it complied with the procedural requirements, including adequate consultation and the provision of necessary information to the employees.

In its decision, the commission found that the proposed agreement met the statutory requirements under the Fair Work Act 2009. The commission concluded that the agreement did not result in any employee being worse off and that it provided for a better overall outcome for the employees. The commission was satisfied that the negotiation process was genuine and that the applicant had adequately consulted with the employees, providing them with the necessary information to make informed decisions. Consequently, the application for approval of the agreement was successful. The commission certified the agreement, enabling it to come into effect from the specified date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established