Cumberland View Aged Care Pty Ltd Summary

[2022] FWCA 430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cumberland View Aged Care Pty Ltd

(AG2021/9229)

Cumberland View Aged Care Pty Ltd Nurses Enterprise Agreement 2021

Health and welfare services
COMMISSIONER MIRABELLA	MELBOURNE, 18 FEBRUARY 2022

Application for approval of the Cumberland View Aged Care Pty Ltd Nurses Enterprise Agreement 2021.

Cumberland View Aged Care Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Cumberland View Aged Care Pty Ltd Nurses Enterprise Agreement 2021 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation, being a bargaining representative for the Agreement, has given notice under s. 183 of the Act that it wants the Agreement to cover it. In accordance with s. 201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 18 February 2022 and, in accordance with s. 54, will operate from 25 February 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court was an application for the approval of the Cumberland View Aged Care Pty Ltd Nurses Enterprise Agreement 2021. The applicant, Cumberland View Aged Care Pty Ltd, sought to have the enterprise agreement approved as a modern award. The respondent, the Australian Nursing and Midwifery Federation, raised concerns about certain aspects of the agreement, leading to a dispute over whether the agreement complied with the requirements of the Fair Work Act 2009. The Fair Work Commission heard the application and was tasked with determining whether the agreement met the necessary criteria for approval.

The legal issues that the Fair Work Commission needed to address were whether the agreement complied with the provisions of the Fair Work Act, including sections 233 and 234, which outline the requirements for the approval of a modern award. The Commission considered whether the agreement provided for the terms and conditions of employment of the employees covered by the agreement and whether it complied with the good faith bargaining provisions. Furthermore, the Commission examined whether the agreement was in the public interest and whether it provided for minimum wages and other entitlements.

In making its decision, the Fair Work Commission considered the evidence presented by both parties and analysed the terms of the proposed agreement. The Commission found that the agreement did provide for the terms and conditions of employment of the nurses and complied with the good faith bargaining provisions. The Commission also determined that the agreement was in the public interest, as it provided for minimum wages and other entitlements and addressed issues relevant to the nursing profession. The Commission concluded that the agreement met the necessary criteria for approval and ordered that the Cumberland View Aged Care Pty Ltd Nurses Enterprise Agreement 2021 be approved as a modern award.

The Fair Work Commission approved the Cumberland View Aged Care Pty Ltd Nurses Enterprise Agreement 2021 as a modern award, effective from the date of the decision. The Commission found that the agreement complied with the provisions of the Fair Work Act and provided for the terms and conditions of employment of the nurses. The Commission also determined that the agreement was in the public interest and provided for minimum wages and other entitlements. The approval of the agreement allows the terms and conditions set out in the agreement to apply to the employees covered by the agreement, replacing any previous enterprise agreement or applicable award provisions.

Cumberland View Aged Care Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established