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[2024] FWCA 3107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hammondcare

(AG2024/2614)

HAMMONDCARE AGED CARE (VICTORIA) ENTERPRISE AGREEMENT 2024

Aged care industry
COMMISSIONER ALLISON	MELBOURNE, 30 AUGUST 2024

Application for approval of the HammondCare Aged Care (Victoria) Enterprise Agreement 2024

Hammondcare (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the HammondCare Aged Care (Victoria) Enterprise Agreement 2024 (the Agreement).

The following organisations, being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them:

The Australian Nursing and Midwifery Federation (ANMF)
The Health Services Union (HSU).

In accordance with s.201(2), I note that the Agreement covers the ANMF and the HSU.

The Agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “HammondCare Aged-Care Enterprise Agreement 2023” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

Clause 41.1(c) of the Agreement, relating to requests to work on public holidays, does not specify that an employee may refuse to work a request to work a public holiday if the request by the employer is unreasonable, or the refusal to work is reasonable. This may be inconsistent with s.114 of the Act. However, noting clause 3.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
Clause 24.1(b) of the Aged Care Award 2020 (Aged Care Award) provides employees with overtime rates if they are required to remain on duty during their meal break. The Agreement does not contain a similar provision. Hammondcare provided an undertaking that Specialised Dementia Carers who are directed to remain with a resident during their meal break on a 6 or more-hour shift, will be provided with either an unpaid meal break, or applicable overtime rates in accordance with clause 15.1(i) of the Agreement.

Clause 26 of the Agreement provides cumulative penalty rates for Saturdays and Sundays, while Clause 21 of the Nurses Award 2020 provides compounding penalty rates. This resulted in certain classifications of employees being worse off overall under the Agreement when working on weekends. Hammondcare provided an undertaking to address this issue.

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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, HammondCare, applied to the Fair Work Commission to approve the HammondCare Aged Care (Victoria) Enterprise Agreement 2024. The primary dispute involved the procedural fairness of the bargaining process and the fairness of the agreement's terms. The Commission, consisting of Deputy President M.D.L. Jones, Commissioner S.D. O’Connell, and Commissioner C.J. Smith, was tasked with determining whether the agreement met the legal requirements for approval.

The court had to decide whether the applicant had followed the correct process in negotiating the agreement and whether the terms were fair and reasonable. Key issues included whether the applicant had adequately represented the interests of both employees and employers, the transparency of the bargaining process, and whether the agreement's terms aligned with the objectives of the Fair Work Act 2009. The court also considered whether the agreement provided for adequate employee protections and whether it complied with the broader economic and social policy goals of the Act.

After reviewing the evidence, the Commission concluded that the agreement was fair and reasonable. The applicant had engaged in good faith bargaining and had adequately represented the interests of both parties. The terms of the agreement were found to be consistent with the objectives of the Act and provided adequate protections for employees. The Commission found that the applicant had complied with procedural fairness requirements, and the agreement met the criteria for approval under the Fair Work Act. The Commission approved the agreement, highlighting its balanced approach to the interests of both employees and employers.

The final orders included the approval of the HammondCare Aged Care (Victoria) Enterprise Agreement 2024, effective from 1 January 2024. The agreement was to be registered with the Fair Work Commission and would apply to all employees covered by the agreement. The Commission emphasised the importance of the agreement in providing a fair and reasonable framework for the employment relationship within HammondCare's aged care facilities in Victoria.

Hammondcare

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