Keilor Hostel for the Aged Association Inc. T/A Holloway Aged Care Services
[2023] FWCA 1567
•31 MAY 2023
| [2023] FWCA 1567 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Keilor Hostel for the Aged Association Inc. T/A Holloway Aged Care Services
(AG2023/1081)
KEILOR HOSTEL FOR AGED ASSOCIATION INC. (TRADING AS HOLLOWAY AGED CARE SERVICES), ANMF AND HSU ENTERPRISE AGREEMENT 2021
| Health and welfare services | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 31 MAY 2023 |
Application for approval of the Keilor Hostel for Aged Association Inc. (trading as Holloway Aged Care Services), ANMF and HSU Enterprise Agreement 2021.
An application has been made for approval of an enterprise agreement known as the Keilor Hostel for Aged Association Inc. (trading as Holloway Aged Care Services), ANMF and HSU Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Keilor Hostel for the Aged Association Inc. T/A Holloway Aged Care Services. The Agreement is a single enterprise agreement.
Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.
In their respective ‘Form F18s’ filed by the Australian Nursing and Midwifery Federation (ANMF) and Health Services Union (HSU), being bargaining representatives for the Agreement, the unions raised matters concerning the approval of the Agreement. While the two unions stated that they did not oppose the Agreement being approved, I consider that the effect of the matters they raised (if accepted) would amount to a submission that the Agreement could not be approved.
The basis of the opposition was twofold.
Firstly, the unions (correctly) noted that explanatory material circulated in anticipation of employees voting on the Agreement erroneously listed the nominal expiry date of the Agreement as being 30 November 2021 (a date in the past) and not the correct date of 30 November 2023. In this respect, there were also other deficiencies identified with the employer’s explanatory material, which I also raised with the employer.
Secondly, and which the unions addressed more substantively, the Agreement was said not to pass the ‘better off overall test’ for the purpose of s.193 of the Act. Broadly speaking, the claimed deficiency was that the wage rates in the Agreement would fall to or below award rates by virtue of the Commission’s ‘Work Value’ decision for the aged care sector (which, in summary, requires future increases to wage rates for certain relevant awards that underpin the BOOT assessment for the current Agreement).
Dealing with the above matters in that order, I am satisfied that the Agreement was genuinely agreed by the employees.
The specific matters raised regarding pre-approval steps focus attention on whether I could be satisfied that s.180(5) has been complied with. Despite the obvious errors in the explanatory material, I am satisfied that s.180(5) was complied with. As the employer submitted, the Agreement had been put to a vote twice. On the first occasion, deficiencies in the voting process were identified such that the application for approval was discontinued. In short, the matter has been before employees for a considerable time and no issue was raised about the nominal expiry date nor any of the other identified errors in the explanatory material. Of the 105 employees eligible to vote, 50 cast a ballot and 47 of those voted to approve the Agreement. A substantially similar outcome arose following the first vote (where there were 112 eligible employees, 56 casting a vote and 51 voting to approve).
Separately, the employer did not notify employees of the place and method of voting seven clear days before the commencement of the voting process: s.180(3) & s.188(1)(a)(i). Nevertheless, in the circumstances, and having regard to the employer’s submissions and the opportunities for other parties to make submissions upon them, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. I remain satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.
As to the BOOT, the ‘test time’ for assessing whether the Agreement passes the better off overall test is the time the application for the approval of the Agreement was made: s.193(6). That time was 16 April 2023 and, for that reason, the future changes to awards as a result of the Work Value decision are to be disregarded.
The ANMF and HSU have each 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.
The Agreement was approved on 31 May 2023 and, in accordance with s.54 of the Act, will operate from 7 June 2023. The nominal expiry date of the Agreement is 30 November 2023.
DEPUTY PRESIDENT
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