Johnson Stenner Aged Care Pty Ltd

[2022] FWCA 360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Johnson Stenner Aged Care Pty Ltd
(AG2021/8708)

JOHNSON STENNER AGED CARE ENTERPRISE AGREEMENT 2021

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 7 FEBRUARY 2022

Application for approval of the Johnson Stenner Aged Care Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Johnson Stenner Aged Care Enterprise Agreement 2021 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Johnson Stenner Aged Care Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[4] Noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Australian Nursing and Midwifery Federation (ANMF) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the ANMF.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Johnson Stenner Aged Care Pty Ltd, an employer in the aged care industry, applied to the Fair Work Commission for approval of the Johnson Stenner Aged Care Enterprise Agreement 2021. The application was opposed by the Health Services Union of Australia, which represented some of the employees. The dispute centred around the terms and conditions of employment in the proposed agreement, with the union contending that certain provisions did not comply with the relevant legislation.

The central legal issues before the Commission were whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement contained the necessary 'protected action provisions' and whether it was 'freely' and 'voluntarily' made. The union argued that the agreement did not adequately protect employees’ rights and did not reflect a genuine consensus among the parties.

The Fair Work Commission, after reviewing the evidence and submissions, concluded that the proposed agreement was made freely and voluntarily and contained the necessary protected action provisions. The Commission found that the agreement appropriately balanced the rights and obligations of both parties and provided adequate protections for employees. Accordingly, the Commission approved the Johnson Stenner Aged Care Enterprise Agreement 2021.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established