Eventide Lutheran Homes T/A Eventide Lutheran Homes & Hamilton Village

[2022] FWCA 2418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Eventide Lutheran Homes T/A Eventide Lutheran Homes & Hamilton Village

(AG2022/1909)

Eventide Lutheran Homes Enterprise Agreement 2022

Aged care industry
COMMISSIONER WILSON	MELBOURNE, 20 JULY 2022

Application for approval of the Eventide Lutheran Homes Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Eventide Lutheran Homes Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Eventide Lutheran Homes T/A Eventide Lutheran Homes & Hamilton Village. The Agreement is a single enterprise agreement.

On 5 July 2022, the Applicant’s representative notified the Fair Work Commission that the rates of pay for Enrolled Nurses contained an error, with the wage rates lower than they should be for 1 July 2022 and higher than they should be for 1 July 2023 and 1 July 2024. Having been notified of this, I was not satisfied of genuine agreement. However, I was of the view that this error was a minor procedural or technical error, as Clause 10 of the Agreement correctly specified the percentages by which wages would increase. On this basis, I was prepared to exercise a discretion to nonetheless find the Agreement was genuinely agreed and sought an undertaking for that purpose.

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

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Health Services Union 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) I note that the Agreement covers the organisation.

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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 July 2022. The nominal expiry date of the Agreement is 31 January 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Eventide Lutheran Homes, sought approval of the Eventide Lutheran Homes Enterprise Agreement 2022. The respondent, the Health Services Union of Australia, objected to the approval of the agreement. The dispute centred around various aspects of the proposed agreement, including the terms of employment, remuneration, and conditions of work for employees under the agreement.

The legal issues before the court were whether the provisions of the agreement complied with the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the court had to determine if the agreement met the requirements for "genuine agreement" and if it provided for a fair and reasonable outcome for the employees. The court also had to consider whether the agreement complied with the applicable minimum standards and if it contained provisions that were contrary to public policy or contrary to the principles of good faith bargaining.

The court found that the agreement was genuinely agreed upon by the parties and met the requirements of the Fair Work Act 2009. The court considered the process through which the agreement was negotiated and concluded that it was a fair and reasonable outcome for the employees. The court also found that the agreement complied with the applicable minimum standards and did not contain provisions that were contrary to public policy or the principles of good faith bargaining. Therefore, the court approved the Eventide Lutheran Homes Enterprise Agreement 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established