HOPE AGED CARE SERVICES PTY LTD T/A Hope Aged Care Summary

[2023] FWCA 313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

HOPE AGED CARE SERVICES PTY LTD T/A Hope Aged Care

(AG2022/5497)

HOPE AGED CARE GROUP, ANMF AND HSU ENTERPRISE AGREEMENT 2022

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 FEBRUARY 2023

Application for approval of the Hope Aged Care Group, ANMF and HSU Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Hope Aged Care Group, ANMF and HSU Enterprise Agreement 2022 (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 SERVICES PTY LTD T/A Hope Aged Care. The Agreement is a single enterprise agreement.

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.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I note that clause 37.2(b) may be inconsistent with the National Employment Standards. 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.

The Australian Nursing and Midwifery Federation and the 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) I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 February 2023. The nominal expiry date of the Agreement is 31 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Hope Aged Care Services Pty Ltd, trading as Hope Aged Care, along with the Australian Nursing and Midwifery Federation and the Health Services Union, applied to the Fair Work Commission for the approval of their 2022 Enterprise Agreement. The application arose from negotiations between the employer and the unions representing the employees, aiming to formalise terms and conditions of employment. The Fair Work Commission, under the Fair Work Act 2009, was tasked with assessing whether the agreement met the criteria for approval. The central legal issue before the Commission was whether the proposed agreement was in compliance with the statutory requirements set out in the Fair Work Act, including whether it provided for fair and reasonable terms and conditions for employees.

The Commission considered various aspects of the agreement, including the process by which it was negotiated, the extent to which it covered the requisite matters, and whether it adhered to the procedural fairness standards. The parties presented evidence and arguments regarding the fairness and reasonableness of the terms included in the agreement, such as wages, working hours, leave entitlements, and other employment conditions. The Commission also examined if the agreement appropriately balanced the interests of both the employer and the employees, ensuring it did not unfairly disadvantage either party. In reaching its decision, the Commission applied relevant case law and statutory provisions to determine if the agreement met the legislative criteria.

After thorough consideration, the Fair Work Commission found that the Hope Aged Care Group, ANMF and HSU Enterprise Agreement 2022 was fair and reasonable, and thus approved it. The Commission concluded that the agreement appropriately addressed the needs of both the employer and the employees, providing for equitable terms and conditions of employment. The Commission's decision was based on the comprehensive negotiation process, the balance of interests reflected in the agreement, and its compliance with the Fair Work Act. The approval of the agreement means it will now form the basis of employment conditions for the relevant employees within the Hope Aged Care Group.

HOPE AGED CARE SERVICES PTY LTD T/A Hope Aged Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established