Community of Cypriots of the Northern Suburbs of Melbourne Inc. T/A Grace of Mary Greek Cypriot Hostel & Sta Andrews Hostel

[2022] FWCA 4519

[2022] FWCA 4519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Community of Cypriots of the Northern Suburbs of Melbourne Inc. T/A Grace of Mary Greek Cypriot Hostel & Sta Andrews Hostel

(AG2022/4874)

Community of Cypriots of the Northern Suburbs of Melbourne Inc., ANF and HSU Enterprise Agreement 2021

Aged care industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 22 DECEMBER 2022

Application for approval of the Community of Cypriots of the Northern Suburbs of Melbourne Inc., ANF and HSU Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Community of Cypriots of the Northern Suburbs of Melbourne Inc., ANF and HSU Enterprise Agreement 2021 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Community of Cypriots of the Northern Suburbs of Melbourne Inc. T/A Grace of Mary Greek Cypriot Hostel & Sta Andrews Hostel (Employer). The Agreement is a single enterprise agreement.

1. 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. I am also satisfied, having regard to the submissions advanced by the parties at a hearing convened on 22 December 2022, and the considerations in Construction, Forestry, Maritime, Mining and Energy Union v Lightning Brick Pavers Pty Ltd t/a Lightning Brick Pavers,[1] that the undertakings will not result in substantial changes to the Agreement. While there are a number of undertakings, I do not regard the undertakings as altering the conditions in the Agreement in an extensive way such that the changes to the Agreement are “substantial.” Rather, the undertakings provide clarity in respect of entitlements and are entirely beneficial to employees. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

·    Clause 45.3 states that not more than 48 hours are to be worked in any week within a fortnightly pay period of 76 hours. This may be inconsistent with s 62 of the Act.

·    Clause 36.2(b), to the extent that it enables the Employer to withhold “any monies” due on termination, which may include NES entitlements.

·    Clause 55 provides for compassionate leave, however it is silent is relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage. This may be inconsistent with s 104(1)(c) of the Act.

1. The Australian Nursing and Midwifery Federation and the Health Services Union, being bargaining representatives for the Agreement, have each 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 organisations.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 29 December 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

[1] [2018] FWCFB 3825

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