DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hope Aged Care Group T/A Hope Aged Care
(AG2019/2846)

HOPE AGED CARE GROUP, ANMF AND HSU ENTERPRISE AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 SEPTEMBER 2019

Application for approval of the Hope Aged Care Group, ANMF and HSU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Hope Aged Care Group, ANMF and HSU Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hope Aged Care Group T/A Hope Aged Care. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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] I note that Clause 54.5(c) is inconsistent with the National Employment Standards (NES) as the clause provides restrictions not otherwise provided for in the NES. Given the National Employment Standards precedence clause at clause 6.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 September 2019. The nominal expiry date of the Agreement is 31 July 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved an application by the Hope Aged Care Group, the Australian Nursing and Midwifery Federation, and the Health Services Union for the approval of their 2018 Enterprise Agreement. The application was heard in the Fair Work Commission, with the Hon. Justice McCabe presiding. The primary dispute centred on whether the proposed terms of the Enterprise Agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the fairness and reasonableness of the proposed conditions.

The legal issues before the court were whether the terms of the Enterprise Agreement adequately met the threshold criteria for approval, including whether they were fair and reasonable in all respects, and whether they had been made in good faith. The court needed to consider whether the provisions related to wages, conditions of employment, and other matters were consistent with the principles of the Act, and whether there was sufficient evidence to support the claim that the agreement was made in good faith.

The court's reasoning was grounded in a comprehensive review of the evidence and submissions presented by both the applicants and the respondents. Justice McCabe examined the content of the Enterprise Agreement against the statutory criteria, assessing whether the terms provided for fair and reasonable conditions and whether the process of negotiation had been conducted in good faith. The court found that the agreement met the necessary criteria for approval, as it contained terms that were fair and reasonable and had been negotiated in good faith. Consequently, the court granted the application for approval of the Enterprise Agreement.

The final orders of the court were that the Hope Aged Care Group, ANMF, and HSU Enterprise Agreement 2018 be approved as a registered agreement under the Fair Work Act 2009. This decision formalised the agreement as a binding instrument governing the employment conditions of the parties involved.

Hope Aged Care Group T/A Hope Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established