DPG Services Pty Ltd T/A Opal HealthCare
[2022] FWC 2287
•31 AUGUST 2022
| [2022] FWC 2287 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
DPG Services Pty Ltd T/A Opal HealthCare
(AG2022/3381)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 31 AUGUST 2022 |
Application for orders relating to transferable instrument.
On 12 August 2022, DPG Services Pty Ltd T/A Opal HealthCare made an application to the Commission for orders pursuant to s 318(1)(a) and (b) of the Fair Work Act 2009 (Cth) (Act).
For the reasons that follow, I am satisfied that the orders should be made.
Context
On or around 1 September 2022, Opal HealthCare will purchase Samkay Health Pty Ltd (Samkay Health) and take over the operations of two residential aged care facilities in Victoria, namely Samkay Health Tyabb located in Tyabb and Kerala Manor located in Diamond Creek. Prior to Samkay Health operating the facilities, they were operated by Lemarlyn Pty Ltd.[1]
Samkay Health currently employs 68 employees across both facilities (transferring employees), with 35 employees at Samkay Health Tyabb and 33 employees at Kerala Manor. The Lemarlyn Pty Ltd (trading as Grace Villa Aged Care), ANF and HSU Enterprise Agreement 2010[2] (Lemarlyn Agreement) currently applies to all transferring employees.[3]
Opal HealthCare currently operates 87 “Care Communities” in New South Wales, Queensland, Victoria and Western Australia, with 18 Care Communities in Victoria not including Samkay Health Tyabb and Kerala Manor.[4] Presently, the Opal Aged Care (Victoria) Enterprise Agreement 2018[5] (Opal Agreement) applies to Opal HealthCare and its existing employee cohort at its aged care facilities in Victoria.[6]
Opal HealthCare seeks an order that the Lemarlyn Agreement will not cover Opal HealthCare or any of the transferring employees,[7] and an order that the Opal Agreement will cover the transferring employees in their employment with Opal HealthCare.[8] Opal HealthCare seeks that the orders operate on and from the date of the orders, or the date the transferring employees’ employment transfers to Opal HealthCare, whichever is the later.[9]
Both the Australian Nursing and Midwifery Federation (being the Australian Nurses Federation at the time) and the Health Services Union of Australia are covered by the Lemarlyn Agreement.[10] Accordingly, the ANMF and the Health Workers Union (for the HSU) are parties to this application. It is noted that the unions were sent the application materials by Opal HealthCare on 12 August 2022 and have been included in correspondence from the Commission for the purposes of the application.
Consideration
Preliminary matters
On 1 September 2022, Opal HealthCare will likely acquire Samkay Health Tyabb and Kerala Manor and commence operating them as aged care facilities.
Opal HealthCare intends to offer employment to the transferring employees at the facilities which, where the offer is accepted, will commence on 1 September 2022.[11]
Opal HealthCare submits that the work that the transferring employees will perform for it will be the same or substantially the same as the work that they perform for Samkay Health. This work comprises of nursing, personal care, leisure/lifestyle assistant, maintenance and on-site administrative services to facilitate the running of the facilities and to provide residential aged care to the residents of each of the facilities.[12]
Opal HealthCare further submits that there will be a connection between it and Samkay Health in that effective from the anticipated transfer date:
(a) the business owned by Samkay Health in respect of the facilities will be transferred to Opal HealthCare;
(b) the business assets owned by Samkay Health at the facilities will be transferred to Opal HealthCare; and
(c) Opal HealthCare will carry on the business previously carried on by Samkay Health at the facilities.[13]
Opal HealthCare contends that, given these matters, there will be a transfer of business from Samkay Health to Opal HealthCare pursuant to s 311(1) of the Act.[14]
In its application, Opal HealthCare notes that its acquisition of the facilities is subject to approval from the Department of Health.[15] On 29 August 2022, Opal HealthCare confirmed that it had obtained the relevant approval.[16]
Accordingly, noting that none of these preliminary matters are in dispute, I am satisfied that from 1 September 2022 it is likely that:
(a) the employment of Samkay Health’s employees at the facilities will terminate as the business will be sold as declared by Opal HealthCare in the Form F40;[17]
(b) within three months after the termination, the employees will become employed with Opal HealthCare as declared by Opal HealthCare in the Form F40;[18]
(c) the work that the employees will perform for Opal HealthCare will be the same or substantially the same as the work done for Samkay Health (transferring work), as Opal HealthCare will operate the facilities for the same purpose and has declared that the nature of the work will be the same or substantially the same in this application;[19] and
(d) there is a connection between Opal HealthCare and Samkay Health because, in accordance with an arrangement between Opal HealthCare and Samkay Health, Opal HealthCare will own or have the beneficial use of some or all of the assets (whether tangible or intangible) that Samkay Health owned or had the beneficial use of and that relate to, or are used in connection with, the transferring work.[20]
In light of these matters, it is likely that the transferring employees will meet the definition of a transferring employee for the purposes of s 311(2) of the Act.
On the basis of the matters described in the application and accompanying material, noting that none are in dispute, I am satisfied that:
(a) there will likely be a transfer of business from Samkay Health to Opal HealthCare on 1 September 2022;
(b) the Lemarlyn Agreement is a transferable instrument;[21]
(c) upon the likely transfer of business, the transferring employees and Opal HealthCare will continue to be covered by the Lemarlyn Agreement;[22] and
(d) upon the likely transfer of business, the ANMF and the HSU will continue to be covered by the Lemarlyn Agreement.[23]
Opal HealthCare has standing to make the application because in the circumstances described and pursuant to s 318(2)(a) of the Act, it is likely to be the new employer of the transferring employees.
Substantive matters
In deciding whether to make the orders sought, I must take into account the factors set out in s 318(3) of the Act. I consider these matters in the analysis that follows.
The views of the new employer or a person who is likely to be the new employer and the views of the employees who would be affected by the order (s 318(3)(a))
The Commission must take into account the views of the new employer and the employees who would be affected by the order.
Opal HealthCare, having made the application, supports the orders being made. Opal HealthCare seeks to apply uniform conditions of employment to existing and transferring employees to ensure consistency and parity for all employees, foster an inclusive and equitable environment and avoid unnecessary administrative costs and challenges.[24] It submits that the Opal Agreement provides overall superior entitlements when compared to the Lemarlyn Agreement.[25]
Opal HealthCare took a number of steps prior to the making of this application to obtain the views of the transferring employees. The steps it took with respect to the transferring employees are, in summary, as follows:
(a) On 28 July 2022, a letter was sent to the transferring employees at Samkay Health Tyabb and a materially identical letter was also sent to the transferring employees at Kerala Manor.[26] The letters identify that Opal HealthCare would acquire the particular facility pending approval by the Department of Health. Attached to the letters were:
a. a copy of the Opal Agreement;[27]
b. a common question and answer sheet which discusses matters such as the transfer of business, the enterprise agreement that will cover the employees prior to and following the transfer, a summary of how prior service and leave accruals will be managed, pay increases, confirmation of notification of the anticipated acquisition and intention to make this application to the Commission to the ANMF and HWU, and who to contact in relation to the transfer (being Opal HealthCare’s Human Resources Service Desk);[28]
c. a wages table specifying the base rates of pay under the Opal Agreement;[29] and
d. a draft copy of the Form F40 application, which the Commission is satisfied reflects a similar, though incomplete, version of the Form F40 filed for the purposes of this application.[30]
(b) On 28 July 2022, a comparison table was made available to transferring employees by way of hard copies at both facilities. The table compared entitlements under the Opal Agreement against the Lemarlyn Agreement (noting that the Lemarlyn Agreement incorporates terms of the Nurses (Victorian Health Services) Award 2000 (Nurses Award) in respect of registered and enrolled nurses, and the Health and Allied Services – Private Sector – Victoria Award 1998 (Allied Award) in respect of various support staff).[31]
(c) On 28 July 2022, the transferring employees were provided with a form asking if they have concerns surrounding the transfer, and if they object to Opal HealthCare making this application to the Commission.[32] To date, 30 out of the 68 transferring employees have returned the form, of which all 30 employees have indicated that they have no concerns in respect of the Opal Agreement applying to their employment with Opal HealthCare following the transfer.
(d) On 2 August 2022 at the Kerala Manor facility and on 4 August 2022 at the Samkay Health Tyabb facility, Opal HealthCare convened team meetings. The meetings were also available to be attended virtually via Microsoft Teams. The meetings were to discuss with the transferring employees Opal HealthCare’s acquisition of the facilities, the intention to make this application to the Commission, and to answer any questions. The documents referred to at (a) and (b) above were also shared with the transferring employees at this meeting.[33]
Opal HealthCare submits that no concerns were raised by the transferring employees in the consultative meetings on 2 August and 4 August 2022. Questions were asked in relation to pay rates, leave entitlements and general operational matters which did not relate this application or to the conditions and entitlements under the Opal Agreement. Opal HealthCare considers that it addressed these questions by way of a commitment to preserve and maintain base rates of pay if an employee’s rate of pay were to decrease under the Opal Agreement, and to recognise accrued personal/carer’s leave, accrued annual leave and service with Samkay Health for the purposes of service-related entitlements (see [35][35] and [36][36] of this decision).[34]
On 28 July 2022, Opal HealthCare sent letters to the ANMF and the HWU notifying the unions of the likely transfer of business, its intention to retain the transferring employees and its intention to make this application in the Commission.[35] The unions were invited to raise any queries with Opal HealthCare. The Form F40 declares that the unions have not raised an objection in relation to this application.[36]
I consider that the steps taken by Opal HealthCare prior to the making of this application mean that the transferring employees and the unions:
(a) were on notice of Opal HealthCare’s intention to make this application in the Commission; and
(b) were informed about the effects of the orders sought prior to the application being filed.
The Commission issued directions on 17 August 2022. Opal HealthCare and the unions were sent a copy of the directions. The directions required Opal HealthCare to provide to the transferring employees:
(a) a copy of the directions;
(b) the Form F40 application and all attachments, which includes a comparison of the entitlements under the Lemarlyn Agreement when compared to the Opal Agreement; and
(c) advice that they may make a submission to the Commission by way of an email to Chambers.
Pursuant to the directions, Opal HealthCare submitted evidence of the provision of this material to the transferring employees on 19 August 2022. The evidence was a witness statement of Karenne Hall, People & Culture Business Partner at Opal HealthCare, dated 19 August 2022.[37] Ms Hall’s witness statement provides in summary as follows:
(a) On 15 August 2022 at 3:05pm, Ms Hall sent by way of email to the current employees at Kerala Manor “to whom offers of employment have been made by Opal HealthCare and who would be affected by the proposed orders,” attaching the documents filed in this materials identified above at [19][19] except the directions.[38] On 15 August 2022 at 3:09pm, Ms Hall sent the same materials to the Samkay Health Tyabb employees “to whom offers of employment have been made by Opal HealthCare and who would be affected by the proposed orders.”[39]
(b) On 18 August 2022, Ms Hall was made aware of the directions of the Commission dated 17 August 2022.[40]
(c) On 18 August 2022 at 12:12pm, Ms Hall sent by way of email to the current employees at Kerala Manor and Samkay Health Tyabb “to whom offers of employment have been made and who would be affected by the proposed orders,” documents filed in this materials identified above at [25][25].[41] Ms Hall included the following in this email:
“… you are able to file submissions or other materials in relation to the application in writing to [email protected] by 4pm on Friday 26 August 2022. This is explained in the Directions (attached). We have also included the F40 and other relevant documents again for your reference.”[42]
The transferring employees and any other party, including Opal HealthCare and the unions, were invited to file submissions or other materials by way of email to the Commission by 26 August 2022. No submissions were received.
On 29 August 2022, the unions were invited to provide any views in response to the application by 30 August 2022. On 31 August 2022, the ANMF and the HWU emailed the Commission respectively advising that there was no opposition to the orders being made.
I am satisfied that the transferring employees, Opal HealthCare and the unions were provided with an opportunity to submit any views in relation to the orders sought to the Commission directly.
The new employer’s views are that the orders should be made. The unions do not oppose the application and no views have been advanced by any transferring employee. I therefore consider that the views of Opal Healthcare, which are not opposed, weigh in favour of making the orders.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment (s 318(3)(b))
The Commission must consider whether any employee would be disadvantaged by the order in relation to their terms and conditions of employment.
Opal HealthCare submits that transferring employees will be better off overall under the Opal Agreement.[43] In support of its position, Opal HealthCare has produced a comprehensive table comparing terms and conditions under the Opal Agreement against the Lemarlyn Agreement.[44] Opal HealthCare also submitted a table comparing the wage rates under the two agreements, matching employee classifications where possible.[45] The rates of pay in respect of the majority of classifications under the Lemarlyn Agreement are identified as being derived pursuant to s 206 of the Act.
I consider the following comparisons between the Opal Agreement and the Lemarlyn Agreement to be of particular significance:
(a) wages for registered nurses are between approximately 10% and 28.09% higher under the Opal Agreement;[46]
(b) wages for enrolled nurses are between approximately 9.96% and 18.21% higher under the Opal Agreement;[47]
(c) wages for personal care workers and support staff are between approximately 2.73% and 12.71% higher under the Opal Agreement;[48]
(d) the ordinary hours of work provisions are broadly the same;[49]
(e) the overtime triggers and applicable penalty rates are mostly identical;[50] and
(f) the payment for work performed on a public holiday is the same.[51]
The Opal Agreement contains additional entitlements that are not contained in the Lemarlyn Agreement, including:
(a) a three-hour minimum engagement for part time employees,[52] and a right to request a review of part time hours annually;[53]
(b) a more favourable casual conversion provision;[54]
(c) notice of termination to casual employees to the end of their current shift;[55]
(d) a statement of service on termination;[56]
(e) a more favourable uniform allowance and laundry allowance,[57] overtime meal allowance[58] and on call allowance;[59]
(f) part-time employees are entitled to payment for a public holiday not worked if the employee has worked on the day of the week on which the public holiday falls on 50% or more of the time;[60]
(g) up to ten days unpaid ceremonial leave per year for Aboriginal and Torres Strait Islander employees;[61]
(h) an additional entitlement to access a pooled emergency and serious illness/injury fund of 7,000 hours per year;[62]
(i) up to three days paid special disaster leave per year;[63]
(j) in addition to the National Employment Standards (NES), special paid domestic or family violence leave entitlements, determined on a case by case basis;[64]
(k) in addition to parental leave provided for in the NES, paid parental leave entitlements;[65]
(l) a transition to retirement plan;[66] and
(m) a maximum of three days unpaid representative leave for union related training.[67]
Further, while it appears that all transferring employees will receive a higher base rate of pay under the Opal Agreement, Opal HealthCare has declared as follows:
“[Opal HealthCare] intends to, where there is a direct translation in classification from one enterprise agreement to the other, preserve the transferring employee’s current base rate of pay until such time as the Opal Agreement rate of pay is equal to or in excess of the employee’s current base rate, at which point the transferring employee’s base rate will be adjusted to align with the relevant base rate under the Opal Agreement.”[68]
Additionally, in relation to leave entitlements, Opal HealthCare has declared as follows:
“[Opal HealthCare] will recognise the accrued personal/carer’s leave, accrued annual leave and service with the old employer of the transferring employees for the purposes of service-related entitlements under the Opal Agreement. For the avoidance of doubt, all transferring employees will transfer to employment with [Opal HealthCare] with their leave accrual balances as at the [1 September 2022], from which date future leave accruals will – where the Orders sought are granted – occur in accordance with the Opal Agreement.”[69]
The following entitlements appear to be either reduced or omitted in the Opal Agreement:
(a) an entitlement by agreement to salary packaging is omitted;[70]
(b) a telephone installation and maintenance allowance for nurses on call is omitted;[71]
(c) a heat allowance for an additional 20 minutes of rest for enrolled nurses and aged care employees working continuously for more than two hours in temperatures exceeding 46 degrees Celsius is omitted;[72]
(d) an interpreters allowance for interpreter qualified enrolled nurses or aged care employees is omitted;[73]
(e) an in-charge allowance for aged care employees is omitted;[74]
(f) experience payments for aged care employees are omitted;[75]
(g) a permanent night shift allowance for registered nurses and enrolled nurses is omitted;[76]
(h) a conditional additional entitlement to 38 hours personal leave is omitted;[77] and
(i) blood donors leave is omitted.[78]
There are further differences between the two agreements which are not set out in this decision. However, the matters raised at [33][33]-[34][34] and [37][37] of this decision identify material differences between the instruments that bear upon my assessment of the consideration at s 318(3)(b) of the Act.
I accept that there are some conditions conferred by the Opal Agreement that are less beneficial when measured against comparable conditions under the Lemarlyn Agreement, or which are omitted. However, having regard to the analysis in this decision, I am satisfied that there are a significant number of equal and more superior conditions under the Opal Agreement which compensate transferring employees for any reductions or omissions.
Accordingly, I am satisfied that the transferring employees will not be disadvantaged in relation to their terms and conditions of employment if the orders sought by Opal HealthCare are made. I consider that this weighs in favour of making the orders.
If the order relates to an enterprise agreement--the nominal expiry date of the agreement (s 318(3)(c))
If the application under s 318 relates to an enterprise agreement, the Commission must consider the nominal expiry date of the agreement.
The Lemarlyn Agreement passed its nominal expiry date on 30 June 2013.[79] The nominal expiry date of the Opal Agreement was 30 June 2022.[80]
The lengthy passage of time since the Lemarlyn Agreement passed its nominal expiry date is a matter that I consider to weigh in favour of the orders being made.
Whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace (s 318(3)(d))
The Act requires the Commission to consider whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace.
Opal HealthCare submits that where employees performing the same or similar duties receive different entitlements, the employees may become dissatisfied with their employment arrangements. In turn, this would not promote a cohesive, equitable and inclusive work culture, but rather has the potential to result in division and negatively impact morale. It follows that having the two different enterprise agreements applying to the same cohort of employees may negatively impact on productivity, which has a direct impact on the quality of care provided to residents.[81]
I observe that at least initially, it appears that only the transferring employees will perform work for Opal HealthCare at the facilities. However, I accept that over time as new employees commence work in the facilities, a growing cohort of non-transferring employees will be covered by the Opal Agreement.[82] In these circumstances, I accept that differing employment conditions may bear negatively upon employee productivity and morale.
While not contended in respect of this factor, I have also taken into considering that if the application were not granted and the Lemarlyn Agreement were to continue applying to the transferring employees’ employment with Opal HealthCare on an ongoing basis, Opal HealthCare would need to set up and administer the Lemarlyn Agreement through its payroll and human resources systems.[83] This is a matter that may give rise to administrative costs and human resources burdens, which I accept may negatively affect the productivity of its workplace.
I consider that these matters weigh in favour of making the orders.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer (s 318(3)(e))
Opal HealthCare submits that it will suffer economic disadvantage if it is required to administer multiple and different industrial instruments within the workplace in respect of employees who perform the same (or identical) work, especially within the same location.[84]
Opal HealthCare’s contentions relate to economic disadvantage said to arise on account of administrative costs occasioned from administering two separate sets of employment conditions to the same employee cohort. It is not expressly submitted by Opal HealthCare that it will suffer “significant” economic damage as a result of the Lemarlyn Agreement covering it. However, to the extent that this is contended, Opal HealthCare’s submissions focus on the negative impact administering multiple instruments may have upon workplace productivity, which is a matter that I have taken into account in respect of the consideration at s 318(3)(d) above. While I accept that productivity concerns may lead to economic disadvantage, particularly given the scale of Opal HealthCare’s operations, the material before the Commission is insufficient to persuade me that the economic damage will in this instance, be “significant.” I therefore regard this factor to be a neutral consideration.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer (s 318(3)(f))
The Commission is required to consider the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer.
Opal Healthcare submits that there is little business synergy between the Lemarlyn Agreement and the Opal Agreement given their ample points of difference.[85] The key differences in the instruments are set out in this decision at [33][33]-[34][34] and [37][37].
On the material before the Commission, there appears to be little business synergy between the Lemarlyn Agreement and the Opal Agreement. This consideration weighs in favour of the orders being made.
The public interest (s 318(3)(g))
Section 318(3)(g) requires the Commission to consider “the public interest.” Opal HealthCare submits that the public interest is not agitated by this application.[86]
The notion of public interest refers to matters that might affect the public as a whole.[87] Having regard to those matters and the material before me, I do not consider there to be any public interest reasons that weigh against making the orders sought. Accordingly, I regard this factor to be a neutral consideration.
Conclusion and disposition
In deciding whether to make the orders, I am required to take into account all the matters in s 318(3). I am satisfied on the basis of the matters set out in this decision that I should make the orders.
I will therefore order that pursuant to s 318(1)(a) of the Act that the Lemarlyn Agreement does not or will not cover Opal HealthCare or the transferring employees in relation to the employment of the transferring employees by Opal HealthCare. Further, I will order that pursuant to s 318(1)(b) of the Act, the Opal Agreement will cover the transferring employees in their employment with Opal HealthCare.
For the purposes of s 318(4) of the Act, the orders will come into operation in respect of a transferring employee on the date that the transferring employee becomes employed by Opal HealthCare or the day on which the order is made, whichever is the later. I note that the orders are made prior to the anticipated transfer date of 1 September 2022.
An order giving effect to this decision will be issued separately in PR745324.
DEPUTY PRESIDENT
[1] Form F40, 2.3 at [1]
[2] AE883480
[3] Form F40, 2.3 at [2]
[4] Form F40 – Attachment 3 (Letters to Kerala Manor Team Members and Samkay Tyabb Team Members - Employment transfer to Opal HealthCare)
[5] AE502589; Opal Aged Care (Victoria) Enterprise Agreement 2018 at clause 4.1(a)
[6] Form F40, 2.3 at [9]
[7] Fair Work Act 2009 (Cth) s 318(1)(a)
[8] Ibid s 318(1)(b)
[9] Ibid s 318(4)
[10] Lemarlyn Pty Ltd (trading as Grace Villa Aged Care), ANF and HSU Enterprise Agreement 2010 [2011] FWAA 232 at [4]
[11] Form F40, 2.3 at [2]
[12] Form F40, 2.3 at [4]
[13] Form F40, 2.3 at [5]
[14] Form F40, 2.3 at [6]
[15] Form F40, 2.3 at [2]
[16] Email from G Raptis to the Commission dated 29 August 2022
[17] Fair Work Act 2009 (Cth) s 311(1)(a)
[18] Fair Work Act 2009 (Cth) s 311(1)(b)
[19] Fair Work Act 2009 (Cth) s 311(1)(c)
[20] Fair Work Act 2009 (Cth) s 311(1)(d) and s 311(3)
[21] Fair Work Act 2009 (Cth) s 312(1)(a)
[22] Fair Work Act 2009 (Cth) s 313(1)
[23] Fair Work Act 2009 (Cth) ss 315(3)
[24] Form F40, 2.3 at [12]-[13] and [15]
[25] Ibid, 2.3 at [14]
[26] Form F40 – Attachment 3 (Letters to Kerala Manor Team Members and Samkay Tyabb Team Members - Employment transfer to Opal HealthCare)
[27] Form F40, 2.3 at [16(a)]; Form F40 – Attachment 2 (Opal Aged Care (Victoria) Enterprise Agreement 2018)
[28] Form F40, 2.3 at [16(a) and (c)]; and [19]; Form F40 – Attachment 3
[29] Form F40, 2.3 at [16(a)]; Form F40 – Attachment 3
[30] Ibid
[31] Ibid
[32] Form F40, 2.3 at [18]; Form F40 – Attachment 4 (Enterprise Agreement Information and Consent Form)
[33] Form F40, 2.3 at [16(b)]
[34] Form F40, 2.3 at [17]
[35] Form F40, 2.3 at [19]; Form F40 – Attachment 5 (Acquisition of Samkay Health Tyabb & Kerala Manor)
[36] Form F40, 2.3 at [20]
[37] Email from G Raptis to the Commission dated 19 August 2022 attaching Witness Statement – Karenne Hall dated 19 August 2022 (Hall Statement)
[38] Hall Statement at [6]; Hall Statement – Annexure KH-1
[39] Hall Statement at [8]; Hall Statement – Annexure KH-2
[40] Hall Statement at [9]
[41] Hall Statement at [10]; Hall Statement – Annexure KH-3
[42] Ibid
[43] Form F40, 2.3 at [22]
[44] Form F40, 2.3 at [21]; Form F40 – Attachment 3
[45] Form F40 2.3 at [21]; Form F40 – Attachment 6 (Comparison of Wages under the Opal Aged Care (Victoria) Enterprise Agreement 2018 and the Lemarlyn Pty Ltd (trading as Grace Villa Aged Care), ANF and HSU Enterprise Agreement 2010)
[46] Ibid
[47] Ibid
[48] Ibid
[49] Form F40- Attachment 3 (Comparison of conditions table)
[50] Ibid
[51] Ibid
[52] Opal Agreement cl 11.3(b)
[53] Opal Agreement cl 11.4
[54] Opal Agreement cl 11.7
[55] Opal Agreement cl 12.1
[56] Opal Agreement cl 12.3
[57] Opal Agreement cl 17.1; Appendix A to the Opal Agreement
[58] Opal Agreement cl 17.2; Appendix A to the Opal Agreement
[59] Opal Agreement cl 17.4; Appendix A to the Opal Agreement
[60] Opal Agreement cl 29.11
[61] Opal Agreement cl 30
[62] Opal Agreement cl 32.4
[63] Opal Agreement cl 35
[64] Opal Agreement cl 36.4
[65] Opal Agreement cll 37.1, 37.2 and 37.3
[66] Opal Agreement cl 39
[67] Opal Agreement cll 43.1(b) and 43.2
[68] Form F40, 2.3 at [23]
[69] Form F40, 2.3 at [24]
[70] Lemarlyn Agreement cl 12
[71] Lemarlyn Agreement (incorporated by reference, Nurses Award cll 43.8 and 61.6)
[72] Lemarlyn Agreement (incorporated by reference, Nurses Award cl 61.11; Allied Award cl 23.3)
[73] Lemarlyn Agreement (incorporated by reference, Nurses Award cl 61.13; Allied Award cl 17.7)
[74] Lemarlyn Agreement (incorporated by reference, Allied Award cl 17.5)
[75] Lemarlyn Agreement (incorporated by reference, Allied Award cl 17.3)
[76] Lemarlyn Agreement cl 36
[77] Lemarlyn Agreement (incorporated by reference, Nurses Award cl 19.3.3)
[78] Lemarlyn Agreement cl 40.1
[79] Lemarlyn Agreement cl 7
[80] Opal Agreement cl 2
[81] Form F40, 2.3 at [27]
[82] Fair Work Act 2009 (Cth) s 314(1)(d)
[83] Form F40, 2.3 at [30]
[84] Form F40, 2.3 at [28]-[30]
[85] Form F40, 2.3 at [31]-[32]
[86] Form F40, 2.3 at [33]
[87] See Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at [23]
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