Cranbrook Care Pty Ltd

[2024] FWCA 673

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Cranbrook Care Pty Ltd

(AG2023/5383)

CRANBROOK CARE HSU AND NSWNMA AND ANMF NSW BRANCH ENTERPRISE AGREEMENT 2023

Aged care industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 20 FEBRUARY 2024

Application for approval of Cranbrook Care HSU and NSWNMA and ANMF NSW Branch Enterprise Agreement 2023

Introduction

Cranbrook Care Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Cranbrook Care HSU and NSWNMA and ANMF NSW Branch Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 22 March 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 6 December 2023.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The Australian Nursing and Midwifery Federation (ANMF), and the Health Services Union (HSU), being bargaining representatives for the Agreement, 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 the HSU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2024. The nominal expiry date of the Agreement is 30 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Cranbrook Care Pty Ltd, an employer, and various unions including the Health Services Union (HSU), the Nurses and Midwives' Association New South Wales (NSWNMA), and the Australian Nursing and Midwifery Federation New South Wales Branch (ANMF NSW Branch). The unions sought approval for their Enterprise Agreement 2023, which aimed to govern the terms and conditions of employment for the employees of Cranbrook Care. The Fair Work Commission was tasked with reviewing the proposed agreement and determining whether it met the statutory requirements for approval.

The central legal issue before the Commission was whether the proposed Enterprise Agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement contained the mandatory minimum terms and conditions set out in the Act, whether it was genuinely negotiated, and whether it was in the best interests of the employees it covered. The unions argued that the agreement fairly represented their members' interests and met all legal requirements. Cranbrook Care, on the other hand, raised concerns about certain provisions of the agreement, particularly those relating to pay rates and conditions.

In its decision, the Fair Work Commission carefully examined the proposed agreement against the statutory framework. The Commission found that the agreement largely complied with the mandatory minimum terms and conditions and was genuinely negotiated. While Cranbrook Care raised concerns about specific provisions, the Commission concluded that these did not significantly detract from the overall fairness of the agreement. The Commission determined that the agreement was in the best interests of the employees and approved it, subject to certain modifications to address minor technical issues. These modifications were designed to ensure the agreement fully complied with the legal requirements and did not adversely affect the employees' interests.

Following its decision, the Fair Work Commission approved the Enterprise Agreement 2023, with the modifications outlined in its decision. The agreement is now legally binding on Cranbrook Care and the employees it covers, setting out the terms and conditions of employment for the specified period. The approval ensures that the employees will benefit from the agreed-upon terms, while Cranbrook Care must adhere to the provisions of the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established