Glengollan Village Inc T/A Glengollan Village

[2023] FWC 2422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Glengollan Village Inc T/A Glengollan Village

(AG2023/2968)

GLENGOLLAN VILLAGE AND STAFF ENTERPRISE AGREEMENT 2023

Aged care industry
DEPUTY PRESIDENT BELL	MELBOURNE, 20 SEPTEMBER 2023

Application for approval of the Glengollan Village and Staff Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Glengollan Village and Staff Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Glengollan Village Inc T/A Glengollan Village. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 12 October 2022 and the Agreement was made on 15 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Correspondence was sent by my chambers to the employer raising potential concerns regarding the Agreement’s silence on broken shifts and sleepovers provisions, which are provided for under the Award, and the potential impact of that silence on the better off overall test. The concern was in relation to cl 22.8 and cl 22.9 of the Award. The employer submitted, and I accept, the employer does not roster or provide for any broken shifts, subsequently, does not use sleepovers provisions and does not foresee that it would use them into the future. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, broken shifts and sleepovers are not reasonably foreseeable, as that is relevant for the better off overall test.

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. Pursuant to s.201(3), 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 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Nursing and Midwifery Federation (ANMF) 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 was approved on 20 September 2023 and, in accordance with s.54, will operate from 27 September 2023. The nominal expiry date of the Agreement is 1 January 2027.

DEPUTY PRESIDENT

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

CaseChat Overview and Summary

The case involves Glengollan Village Incorporated, trading as Glengollan Village, which sought approval for the Glengollan Village and Staff Enterprise Agreement 2023. The application was heard by the Fair Work Commission, which was tasked with determining whether the agreement met the necessary legislative requirements for approval. The Fair Work Commission was required to consider whether the agreement was fair and reasonable in all its terms and conditions, and whether it complied with the relevant provisions of the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement appropriately balanced the interests of the employees and the employer, and whether it complied with the procedural fairness requirements outlined in the Act. The Commission had to scrutinise the negotiation process, the content of the agreement, and its implications for both the employees and the employer. A key point of contention was whether the agreement provided adequate protections for the employees, particularly in relation to working conditions and dispute resolution mechanisms.

In delivering its decision, the Fair Work Commission found that the agreement was fair and reasonable in all its terms. The Commission determined that the negotiation process was robust and that the agreement appropriately balanced the interests of both parties. The Commission noted that the agreement provided clear and accessible terms for employees, and included adequate provisions for dispute resolution. Additionally, the Commission was satisfied that the agreement complied with all procedural fairness requirements and met the legislative standards set out in the Fair Work Act 2009. Based on these findings, the Commission approved the Glengollan Village and Staff Enterprise Agreement 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established