DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Homewood Care Pty Ltd trading as Homewood Nursing Home and Homewood Gardens
(AG2021/6931)

HOMEWOOD CARE PTY LTD, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2021

Aged care industry
COMMISSIONER MATHESON	SYDNEY, 13 OCTOBER 2021

Application for approval of the Homewood Care Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Homewood Care Pty Ltd, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2021 (Agreement). The application was made by Homewood Care Pty Ltd trading as Homewood Nursing Home and Homewood Gardens (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] Clause 12.3(b) of the Agreement contains an apparent error stating:

‘Before commencing part-time employment, the Employer and Employee will agree in writing the guaranteed minimum number of hours to be worked hours to be worked and the days of the week and shifts that will be worked’ (emphasis added).

[3] The Applicant applied for a correction seeking that the Commission exercise its powers pursuant to s.586 of the Act so that the clause states:

‘Before commencing part-time employment, the Employer and Employee will agree in writing the guaranteed minimum number of hours to be worked and the days of the week and shifts that will be worked’.

[4] I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act. I make the amendment.

[5] Clause 38.1 of the Agreement prescribes shift penalties. The table in clause 38.1(a) contains the words:

‘Afternoon shift commencing after 10.00 a.m. and before 1:00 p.m’ (emphasis added).

[6] The Applicant applied for a correction seeking that the Commission exercise its powers pursuant to s.586 of the Act so that the clause states:

‘Afternoon shift commencing at 10.00 a.m. and before 1:00 p.m’.

[7] I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act. I make the amendment.

[8] I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[10] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[11] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[12] The Australian Nursing and Midwifery Federation and Health Services Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.  In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In this matter, the applicant, Homewood Care Pty Ltd trading as Homewood Nursing Home and Homewood Gardens, sought approval of an enterprise agreement. The dispute involved the terms of the proposed agreement, which the applicant aimed to have approved by the Fair Work Commission (FWC). The respondents were the NSW Nurses and Midwives’ Association, the Australian Nursing and Midwifery Federation NSW Branch, and the Health Services Union New South Wales Branch. The FWC was tasked with determining whether the proposed agreement met the necessary legal standards for approval under the Fair Work Act 2009.

The key legal issues the FWC needed to address were whether the agreement met the procedural and substantive requirements for approval under the Act. Procedurally, the FWC considered whether the agreement was made in good faith, and whether it was the product of direct and genuine bargaining between the parties. Substantively, the FWC examined whether the agreement complied with the provisions of the Fair Work Act, including whether it provided for the employees' pay and conditions of employment in a fair and reasonable manner. The FWC also needed to consider the implications of any terms that might affect the employees' rights under the National Employment Standards.

The FWC found that the agreement was made in good faith and was the result of direct and genuine bargaining. It further found that the agreement met the necessary legal standards for approval. The FWC noted that the agreement provided for fair and reasonable terms and conditions of employment, and that it complied with the provisions of the Fair Work Act. The FWC was satisfied that the agreement did not adversely affect the employees' rights under the National Employment Standards. Consequently, the FWC approved the enterprise agreement.

The FWC's final order was that the proposed enterprise agreement, as submitted by the applicant, be approved as a registered agreement under the Fair Work Act. This approval effectively means that the terms of the agreement will apply to the employees covered by it, and will supersede any inconsistent terms and conditions in any previous agreements or awards.

Homewood Care Pty Ltd trading as Homewood Nursing Home and Homewood Gardens

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established