Kanandah Retirement Ltd Summary

[2024] FWCA 1441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kanandah Retirement Ltd

(AG2024/621)

KANANDAH RETIREMENT LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 19 APRIL 2024

Application for approval of the Kanandah Retirement Limited, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Kanandah Retirement Limited, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Kanandah Retirement Ltd (Applicant). The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 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.

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved Kanandah Retirement Limited, the NSW Nurses and Midwives’ Association, and the Health Services Union of NSW, who sought approval for the 2023 Enterprise Agreement. The application was heard in the Fair Work Commission. The primary dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the applicants needed to demonstrate that the agreement complied with the criteria for minimum entitlements, including wages, leave, and other conditions of employment, and that it had been fairly negotiated.

The court had to determine whether the agreement provided for terms and conditions that were not less favourable than the applicable minimum standards and if the agreement was genuinely negotiated. Additionally, the court examined the process through which the agreement was reached to ensure it adhered to the procedural fairness required by the Act. The applicants argued that the agreement was the result of a genuine negotiation process and that it did not undermine the minimum entitlements of the employees. The union and the employer also presented evidence to support the contention that the agreement reflected the needs and concerns of the workforce.

After reviewing the submissions and evidence, the Fair Work Commission found that the proposed agreement met the statutory requirements for approval. The court was satisfied that the agreement provided for terms and conditions that were not less favourable than the applicable minimum standards and that the negotiation process was fair and genuine. Consequently, the court approved the Kanandah Retirement Limited, NSWNMA and HSU NSW Enterprise Agreement 2023. This decision ensures that the agreement will provide a framework for the employment conditions of the workers covered by the agreement, subject to the terms and conditions set out in the approved document.

Kanandah Retirement Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established