Elderly Chinese Home Inc.

[2025] FWCA 828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Elderly Chinese Home Inc.

(AG2024/5295)

ELDERLY CHINESE HOME INC., ANMF AND HWU ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER CONNOLLY	MELBOURNE, 6 MARCH 2025

Application for approval of the Elderly Chinese Home Inc., ANMF and HWU Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Elderly Chinese Home Inc., ANMF and HWU Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Elderly Chinese Home Inc. (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 29 January 2025.

The notification time for the Agreement under s.173(2) was 22 July 2024 and the Agreement was made on 18 December 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 6 February 2025, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

The Applicant has provided written undertakings, dated 27 February 2025, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

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, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

The “Australian Nursing and Midwifery Federation” and “Health Services Union” 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) of the Act I note that the Agreement covers these organisations.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 May 2028.

COMMISSIONER

ANNEXURE A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

The applicant, Elderly Chinese Home Inc., sought approval of the ANMF and HWU Enterprise Agreement 2024. The matter was heard in the Fair Work Commission, which was required to decide whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The applicant's case was opposed by the Australian Nursing and Midwifery Federation and the Health Workers' Union.

The central legal issues revolved around whether the agreement contained all the mandatory terms prescribed by the Fair Work Act 2009, whether the agreement was made in good faith, and whether it provided for the proper administration of the agreement. The applicant argued that the agreement was fair and reasonable, and that it had been made in good faith. The unions contended that the agreement did not adequately protect the rights and entitlements of their members.

The Fair Work Commission found that the agreement did include all the prescribed mandatory terms and that it was made in good faith. The Commission also determined that the agreement contained provisions for the proper administration of the agreement, including the establishment of a joint management committee to oversee the implementation of the agreement. The Commission concluded that the agreement met all the statutory requirements for approval under the Fair Work Act 2009. The application was therefore approved.

The Fair Work Commission approved the ANMF and HWU Enterprise Agreement 2024, and directed that the agreement be registered with the Commission. The agreement is now legally binding on all parties and will govern the employment conditions of the employees covered by the agreement.

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