Dunbar Homes Inc Trading AS Dunbar Homes Incorporated

[2025] FWCA 1816

[2025] FWCA 1816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Dunbar Homes Inc Trading AS Dunbar Homes Incorporated

(AG2025/1230)

DUNBAR HOMES INC AGED CARE SECTOR EMPLOYEES ENTERPRISE AGREEMENT 2025

Aged care industry
COMMISSIONER THORNTON	ADELAIDE, 29 MAY 2025

Application for approval of the Dunbar Homes Inc Aged Care Sector Employees Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Dunbar Homes Inc Aged Care Sector Employees Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dunbar Homes Inc Trading As Dunbar Homes Incorporated (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees was not in the prescribed form. The NERR provided to parties was a version used prior to April 2017 and had been slightly altered. It also appears to have a different title for the Agreement, that title being ‘Dunbar Homes Inc Aged Care Employees Enterprise Agreement 2022’. However, I am satisfied that the Agreement would have been genuinely agreed to but for the departure from the NERR requirements in s.174(1)(A)(c) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act and exercise the discretion conferred by s.188(5) of the Act to disregard the minor technical error.

1. The Agreement does not contain a Delegates’ Rights Term, as required by s 205A(1) of the Act. Under s.205A(2), the Workplace Delegates’ Rights term in Clause 7A of the Aged Care Award 2010 (the Award) is taken to be a term of the Agreement.

1. On termination of employment by an employee without required notice, the Agreement provides for the withholding of from any monies due to an employee. This may be inconsistent with the National Employment Standards (NES). Noting clause 2.6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement does not contain a minimum engagement period for full-time employees. The Applicant has submitted that it does not engage full-time employees on shifts of four hours and a pattern of work that includes shifts of four hours or less is very unlikely for full-time employees employed by the Applicant employer. Further, the Applicant employer submitted that no shifts are commenced between 10:00am and 1:00pm each day that would otherwise attract penalty rates under the Award.

1. Pursuant to sections 193A(6) and (6A) of the Act, I have had regard to the submissions of the Employer that the patterns of work referred to above are not reasonably foreseeable. I accept the submissions of the Employer. For completeness I note the terms of section 227A of the Act that allows the Commission, in certain circumstances, to reconsider whether the Agreement passes the better off overall test if there are changes to the patterns of work at a later time.  

1. The Australian Nursing and Midwifery Federation (ANMF) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the ANMF.

1. The Agreement is approved and will operate in accordance with s.54 of the Act from 5 June 2025. The nominal expiry date of the Agreement is 30 June 2028.

COMMISSIONER

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