Hakea Grove Aged Care Pty Ltd

[2024] FWCA 1814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hakea Grove Aged Care Pty Ltd

(AG2024/1038)

HAKEA GROVE AGED CARE PTY LTD, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 22 MAY 2024

Application for approval of the Hakea Grove Aged Care Pty Ltd, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Hakea Grove Aged Care Pty Ltd, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Hakea Grove Aged Care Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Hakea Grove Aged Care Pty Ltd, the National Union of Workers NSW Nurses and Midwives' Association (NSWNMA), and the Health Services Union NSW (HSU NSW), an application was made for the approval of the Hakea Grove Aged Care Pty Ltd, NSWNMA and HSU NSW Enterprise Agreement 2023. The application was brought before the Fair Work Commission (FWC). The primary issue before the FWC was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirement for genuine agreement and the consideration of employee protections and entitlements. The FWC had to assess the agreement in light of these statutory obligations, including the relevance of any disputes or negotiations that led to the agreement.

The FWC considered the process by which the agreement was reached, the content of the agreement itself, and the evidence provided by the parties regarding the genuineness of the negotiations and the agreement. The FWC examined the terms and conditions set out in the agreement, ensuring they met the Fair Work Act’s requirements for minimum entitlements and protections for employees. The FWC also considered the impact of the agreement on the workforce and whether it adequately represented the interests of the employees involved.

After careful consideration of the submissions and evidence, the FWC determined that the Hakea Grove Aged Care Pty Ltd, NSWNMA and HSU NSW Enterprise Agreement 2023 complied with the statutory requirements under the Fair Work Act. The FWC was satisfied that the agreement had been genuinely negotiated and that it provided appropriate protections and entitlements for the employees. Therefore, the FWC approved the agreement. The FWC issued a certificate of approval for the enterprise agreement, confirming its validity under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established