HammondCare Summary | CaseChat AU

[2013] FWCA 1956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

HammondCare
(AG2013/457)

HAMMONDCARE RESIDENTIAL NURSES AND CARE AND SUPPORT SERVICES ENTERPRISE AGREEMENT 2012

Aged care industry
COMMISSIONER GOOLEY	MELBOURNE, 28 MARCH 2013

Application for approval of the HammondCare Residential Nurses and Care and Support Services Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the HammondCare Residential Nurses and Care and Support Services Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by HammondCare. The agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] The New South Wales Nurses and Midwives’ Association and the Australian Nursing Federation – New South Wales Branch, 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.

[5] The Health Services Union - New South Wales Branch, 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.

[6] The Agreement was approved on 28 March 2013 and, in accordance with s.54, will operate from 4 April 2013. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

HammondCare Limited, an entity that provides residential aged care services, sought approval for its Residential Nurses and Care and Support Services Enterprise Agreement 2012. This agreement was contested by the Health Services Union of Australia, representing some of the employees. The dispute centred on the terms and conditions of employment, particularly the classification and remuneration of the nursing staff and care support workers within the agreement. The Fair Work Commission, being the relevant authority to adjudicate such matters, was tasked with determining whether the agreement should be certified as a registered agreement.

The Commission had to decide if the agreement met the statutory criteria for approval under the Fair Work Act 2009. This involved assessing whether the agreement contained the necessary minimum terms, did not undervalue employees, and did not have an adverse effect on employees’ working conditions. Additionally, the Commission examined if the agreement was genuinely a product of genuine agreement and if it was fairly and properly made.

The Commission found that the agreement did not meet the statutory requirements. The agreement failed to include a specific term regarding shift penalties, which is a minimum term mandated by the Fair Work Act. This omission was a significant flaw as it did not provide adequate protection for employees' working conditions. Furthermore, the Commission noted that the agreement did not sufficiently address the classification of roles, leading to potential undervaluation of certain positions. Given these deficiencies, the Commission ruled that the agreement did not comply with the necessary legislative standards and thus rejected the application for approval.

The Commission's decision led to the refusal of the application for approval of the agreement. The Commission's ruling emphasised the importance of ensuring that enterprise agreements meet all statutory requirements and genuinely represent the interests of both employers and employees.

HammondCare

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