DECISION

Fair Work Act 2009
s.185—Enterprise agreement

HammondCare T/A HammondCare
(AG2018/5975)

HAMMONDCARE RESIDENTIAL CARE AND HAMMONDCARE AT HOME ENTERPRISE AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT CROSS	SYDNEY, 30 MAY 2019

Application for approval of the HammondCare Residential Care and HammondCare at Home Enterprise Agreement 2018.

[1] An application has been made by HammondCare for the approval of an enterprise agreement known as the HammondCare Residential Care and HammondCare at Home Enterprise Agreement 2018 (the ‘Agreement’). The application was made pursuant to s.185 of the Fair Work Act 2009 (the ‘Act’) on 14 October, 2018. 1 The Agreement is a single enterprise agreement.

[2] The employees whose employment is covered by the Agreement perform work that is covered by the Nurses Award 2010, the Aged Care Award 2010, and the Social, Community, Home Care and Disability Services Industry Award 2010 (the ‘SCHADS Award’).

Background

[3] The application was lodged with the Fair Work Commission (the ‘Commission’) on 24 October, 2018. The following documents were received from HammondCare: -

1. Form F16;
2. Form F17, completed by Mr. Jeff Wright; and
3. A copy of the Agreement.

[4] The Health Services Union – New South Wales Branch (the ‘HSU’), the New South Wales Nurses and Midwives’ Association (the ‘NSWNMA’) and United Voice (‘UV’) were employee organisation bargaining representatives for the Agreement. There were a further twenty-three (23) nominated employee bargaining representatives for the Agreement and the Schedule of those nominated employee bargaining representatives attached to the Form F16 is Annexure ‘A’ to this Decision.

[5] The HSU, the NSWNMA and UV all filed Form F18 declarations on 16 November, 26 November, and 4 December, 2018, respectively. The HSU, the NSWNMA and UV all supported the approval of the Agreement, but disagreed with a number of the answers provided by HammondCare in the Form F17.

[6] On 4 March, 2019, I issued Directions for the filing and service of Submissions and evidentiary materials. The parties have since complied with those Directions. In particular: -

1. The HSU filed their Submissions, including an excel document and summary sheet of proposed undertakings, on 8 March, 2019, with the NSWNMA and UV adopting the Submissions of the HSU.

2. HammondCare filed their Submissions, including draft undertakings and a number of emails and documentary material covering Form F17 questions 2.4 to 2.8, on 22 March 2019.

3. The HSU filed their Submissions in reply, which annexed a number of witness statements, on 5 April 2019.

4. HammondCare filed further Supplementary Submissions and witness statements, not pursuant to the Directions, on 12, April 2019.

[7] On 1 March, 2019, at the hearing when the Directions for the filing and service of Submissions and evidentiary materials were made, it was agreed that I should determine the application on the papers without a hearing. There has since been no suggestion that that was not the appropriate course.

Legislative framework

[8]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWCA 3403
Decision Date: 30 MAY 2019

CaseChat Overview and Summary

HammondCare T/A HammondCare, an organisation providing aged and disability care services, sought approval of the HammondCare Residential Care and HammondCare at Home Enterprise Agreement 2018. The application was brought before the Fair Work Commission, where the key issue was whether the agreement met the requirements for approval under the Fair Work Act 2009. The Commission needed to determine if the agreement was in the best interests of the employees and whether it included the minimum entitlements specified in the Act.

The Commission assessed the agreement by examining its provisions and comparing them against the statutory requirements. A significant aspect of the evaluation was whether the agreement provided for appropriate minimum terms and conditions, including pay rates, leave entitlements, and other employment standards. The Commission also considered submissions from the parties and relevant stakeholders, including unions and employee representatives. Ultimately, the Commission found that the agreement satisfied the legislative criteria and would benefit the employees by offering a fair and reasonable set of terms and conditions.

Accordingly, the Commission approved the HammondCare Residential Care and HammondCare at Home Enterprise Agreement 2018. The decision was grounded on the conclusion that the agreement met the statutory prerequisites and would serve the best interests of the employees by providing fair and reasonable terms and conditions of employment. The approval ensures that the agreement can be implemented, providing a stable framework for the employment relationship between HammondCare and its employees.

Orders