Estia Investments Pty Ltd T/A Estia Health

[2024] FWCA 3352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement
s.218A – Application to vary an agreement to correct or amend errors, defects or irregularities

Estia Investments Pty Ltd T/A Estia Health

(AG2024/2082; AG2024/2102)

ESTIA HEALTH NSW ENTERPRISE AGREEMENT 2024

Aged care industry
COMMISSIONER MCKINNON	SYDNEY, 25 SEPTEMBER 2024

Application for approval of the Estia Health NSW Enterprise Agreement 2024 and variation of the Estia Health NSW Enterprise Agreement 2024

Estia Investments Pty Ltd T/A Estia Health has applied for approval of a single enterprise agreement known as the Estia Health NSW Enterprise Agreement 2024 (the Agreement). The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) were bargaining representatives for the Agreement. If the Agreement is approved, Estia Health has also applied to vary two clauses of the Agreement to remedy obvious errors affecting the entitlement to weekend penalties for casual, non-nursing employees and the application of evening penalties. The proposed variations are not opposed.

Although the ANMF supports approval of the Agreement, it has expressed a view that the Agreement does not pass the better off overall test in relation to Nursing Assistants because of the loss of overtime for working broken shifts and less beneficial annual leave entitlements. The concern arises from the ANMF’s view that Nursing Assistants are covered by the Nurses Award 2020. For the purposes of this application, I have proceeded on the basis that this view is correct and the better off overall test for Nursing Assistants has been assessed accordingly. The HSU has not separately expressed any view about approval of the Agreement other than to note its wish to be covered.

Separate to the concerns of the ANMF, concerns about the better off overall test have been identified by the Commission in connection with low rates of pay for senior food service employees and allied health employees, the application of shift penalty rates, when overtime applies and on-call allowance. The concerns are raised in concert with an acknowledgment that the Agreement contains more beneficial terms than relevant modern awards including higher rates of pay for most classifications, more generous parental leave and additional allowances.

Estia Health has provided submissions as well as written undertakings in response to the concerns raised by the Commission, and the ANMF has also provided a response. The submissions of Estia Health are persuasive in relation to the allied health employee classification, maximum daily hours and the span of hours, and application of on-call allowance to employees covered by the Aged Care Award 2010. In this regard, I prefer the submissions of Estia Health over the ANMF’s submission in relation to whether overtime is payable on a shift‑by‑shift basis in circumstances where express provision is made for averaging of hours over a roster period in the Aged Care Award 2010.

The undertakings address my concerns in relation to evening penalties, rates of pay for the single most senior Cook, Chef and Food services supervisor and on-call allowance for Nursing Assistants. The undertakings are made in accordance with section 190 of the Fair Work Act 2009 (Act) and are attached at Annexure A. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

With the undertakings now given, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met. The Agreement is approved and will operate from 2 October 2024. The nominal expiry date of the Agreement is 3 July 2026. The Agreement covers the Australian Nursing and Midwifery Federation and Health Services Union.

The following clauses of the Agreement are varied under section 218A of the Fair Work Act 2009 to correct obvious errors by:

deleting clause 31.2(c)(iii); and
in clause 31.7, replacing the words “after 7.30pm” with the words “before 7.30am”.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The case before the Fair Work Commission involved Estia Investments Pty Ltd, trading as Estia Health, seeking approval for the Estia Health NSW Enterprise Agreement 2024 and a variation to that agreement. The Commission was tasked with determining whether the agreement met the necessary requirements for approval under the Fair Work Act 2009, including the provision of genuine agreement and the meeting of the better off overall test.

The legal issues before the Commission were primarily whether the enterprise agreement was genuinely negotiated and whether it met the better off overall test. The Commission needed to assess the process of negotiation, the fairness of the terms, and whether the agreement provided a safety net for employees that was at least as good as the applicable award or registered agreement. The Commission also had to consider the impact of the agreement on the employees and whether it provided a net benefit to them.

In reaching its decision, the Commission examined the evidence presented regarding the negotiation process and the terms of the agreement. It considered the submissions from both Estia Health and the relevant union, as well as the views of the employees. The Commission found that the agreement had been genuinely negotiated and that it met the better off overall test. The Commission was satisfied that the agreement provided a safety net that was at least as good as the applicable award and that it provided a net benefit to the employees, taking into account the context of the industry and the economic conditions.

The Fair Work Commission approved the Estia Health NSW Enterprise Agreement 2024 and the variation to that agreement, subject to certain conditions. The final orders included the approval of the agreement with specific terms and conditions, ensuring that it complied with the requirements of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established