Gladstone House Nursing Home Pty Ltd

[2013] FWCA 2651

[2013] FWCA 2651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Gladstone House Nursing Home Pty Ltd
(AG2013/6118)

GLADSTONE HOUSE NURSING HOME PTY LTD, NSWNMA & HSU NSW BRANCH ENTERPRISE AGREEMENT 2012

Aged care industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 MAY 2013

Application for approval of the Gladstone House Nursing Home Pty Ltd NSWNMA & HSU NSW Branch Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Gladstone House Nursing Home Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Gladstone House Nursing Home Pty Ltd, NSWNMA & HSU NSW Branch Enterprise Agreement 2012 (the ‘Agreement’). The applicant was represented by Leading Age Services NSW-ACT (‘Leading Age’). The Agreement was negotiated with the New South Wales Nurses and Midwives’ Association (NSWNMA), the Australian Nursing Federation New South Wales Branch (ANF) and the Health Services Union New South Wales Branch (HSU) (collectively, the ‘Unions’). The Agreement is to cover 26 employees who are engaged in the provision of nursing and aged care services at the applicant’s premises in Burwood, New South Wales.

[2] The Agreement is relevantly identical to a number of similar agreements approved by the Commission and Fair Work Australia in recent times. It contains the same terms and conditions reflecting an industry wide template agreement which has been negotiated between the parties. See: Summitcare Pty Ltd T/A SummitCare re SummitCare (Australia), NSWNA & HSU East Branch Enterprise Agreement 2012 [2012] FWAA 7735, Korlim Pty Ltd T/A Windermere Nursing Home and others [2012] FWA 8728, Maclean Valley Nursing Home Pty Limited and others [2012] FWA 8939, The Willows Private Nursing Home Pty Ltd and others [2012] FWA 9349, The Sisters of Our Lady of China Peakhurst Nursing Home & Others [2012] FWA 10588 and Castellorizian Aged Care Services re Castellorizian Aged Care Services, NSWNMA & HSU NSW Branch Enterprise Agreement 2012 [2013] FWCA 2416.

[3] The employees were last notified of their representational rights on 23 January 2013, and voting for the Agreement’s approval took place on 28 March 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a voting process that involved employees placing their votes into a locked ballot box, all 17 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 April 2013, thereby satisfying s 185(3) of the Act.

[4] In the Employer’s Declaration in support of the application (Form F17) Ms Irene Walker, Company Director, identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

● Nurses Award 2010 [MA000034];
● Aged Care Award 2010 [MA000018];
● Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100];
● Nursing Homes, &c., Nurses’ (State) Award [AN120387];
● Aged Care General Services (State) Award [AN120011];
● Charitable Sector, Aged and Disability Care Services (State) Award 2003 [AN120117]
● Nurses (Private Sector) Redundancy (State) Award [AN120380]; and
● The Private Hospitals and Aged and Disability Care Services Industry Redundancy (State) Award [AN120565].

[5] Ms Walkersaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments including higher rates of pay, a workload management clause, enhanced redundancy benefits, improved long service leave entitlements, and provision for a number of allowances. It was also said that another benefit was the ability to cash out annual leave. The Agreement also provides for a small number of terms and conditions that are less beneficial than those under the reference instruments, including the removal of an entitlement to overtime rates where an employee is required to remain available or on duty during a meal break. However, overall I am well satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 8 respectively, and a disputes resolution procedure clause 9 provides for conciliation and arbitration by the Commission.

[6] At a hearing of the application on 30 April 2013, Ms E Patton of Leading Age,appeared for the applicant and Ms K Wild for the NSWNMA and the ANF. The HSU did not appear at the hearing. However, both Unions had filed Declarations in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that they wish to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement. Ms Patton outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that the Agreement provides that employees’ are guaranteed to be paid at rates of at least 1% above the transitional wage rate. She added that the employees have been paid at the rates applicable under the Agreement since 1 July 2012. Ms Wild supported the applicant’s submission and the Commission’s approval of the Agreement.

[7] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Gladstone House Nursing Home Pty Ltd, NSWNMA & HSU NSW Branch Enterprise Agreement 2012. Pursuant to s 54 of the Act, the Agreement shall operate from 7 May 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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