Korlim Pty Ltd T/A Windermere Nursing Home and others

[2012] FWA 8728

[2012] FWA 8728

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 185 - Applications for approval of single-enterprise agreements

Korlim Pty Ltd T/A Windermere Nursing Home and others
(AG2012/10830, AG2012/10845, AG2012/10846, AG2012/10851, AG2012/10880, AG2012/10933, AG2012/10937, AG2012/10970, AG2012/11018, AG2012/11167, AG2012/11199)

Aged care industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 OCTOBER 2012

Application for approval of numerous aged care industry enterprise agreements.

[1] This decision relates to numerous applications, filed pursuant to s 185 of the Fair Work Act 2009 (‘the Act’), by employers involved in operating aged care facilities in NSW (‘the applicants’). The applicants seek the approval of Fair Work Australia (FWA) in relation to eleven single enterprise agreements (‘the Agreements’). All the applicants were represented by Leading Age Services Australia NSW-ACT (‘Leading Age’), who negotiated the Agreement with the NSW Nurses’ and Midwives’ Association of NSW (‘the Nurses’ and Midwives’ Association’), the Australian Nursing Federation (NSW Branch) (‘the Nursing Federation’) and the Health Services Union East Branch (‘the HSU’) (collectively, ‘the Unions’). A list of the Agreements is annexed to this decision as Annexure A.

[2] For convenience, and as a matter of commonsense, all the matters were joined, by consent, at a hearing of the applications on 28 September 2012. This was so because the Agreements are all relevantly identical, with the same terms and conditions reflecting an industry wide template agreement which has been negotiated between the parties and applied to these and other similar agreements approved by FWA in recent times. I note that thirty-eight similarly identical agreements were recently approved by me in [2012] FWAA 7735. I understand more applications of a similar nature are to follow.

[3] At the hearing, Ms E Patton and Mr G Sheargold from Leading Age appeared for the applicants, Ms A McCosker appeared for the Nurses’ and Midwives’ Association and the Nursing Federation and Ms F Johnston appeared for the HSU. Mr Sheargold outlined the main features of the Agreements and submitted that, in all cases, the Better Off Overall Test (BOOT) had been met. He put that all the other statutory requirements in respect to the processing and approval of enterprise agreements have been satisfied.

[4] The Unions were involved in the negotiations for all of the Agreements and have filed Form F18s in each case, in which they support the applications and seek to be covered by the Agreements listed in Annexure A. Pursuant to s 201(2) of the Act, I note that each of the Unions shall be covered by each of the Agreements listed in Annexure A. The Unions support the submissions of the applicant that the Agreements meet the BOOT. In this respect, I note the submission of Mr Sheargold that the Agreements maintain conditions relating to pay rates of relevant Notional Agreements Preserving State Awards (‘NAPSAs’) that had been lost in the Modern Award process. The reference instruments to which the Agreements are to be compared for the purposes of the Better Off Overall Test (‘BOOT’) are as follows:

• Nurses Award [MA000034]



• Aged care Award [MA000018]



• Nursing Home, &C Nurses (State) Award (NAPSA) [AN120387]



• Aged Care General Services (State) Award (NAPSA) [AN 1200011]



• Charitable Sector Aged and Disability Care Services (State) Award (NAPSA) [AN120117]



• Nurses (Private Sector) Redundancy (State) Award (NAPSA) [AN120117]

[5] In addition, the Agreements also provide for other benefits which are either not in the relevant reference instruments, or are in excess of the corresponding entitlements contained in the reference instruments. These include:

• improved long service leave provisions;



• enhanced redundancy benefits;



• casual conversion improvements;



• provisions for a medication allowance, in charge allowance, continuing education allowance and service allowance;



• improved higher duties provisions; and



• the provision for a Team Leader’s position.

[6] While the Agreements do contain a small number of less beneficial conditions and entitlements than the relevant reference instruments, I am satisfied, when viewed overall, that the Agreements all meet the BOOT. I note the Agreements contain the mandatory flexibility and consultation terms. I note further that the dispute resolution procedures provide for conciliation and arbitration by FWA and consent arbitration in respect to workload management issues.

[7] I will issue further individual decisions specifying that each of the Agreements in Annexure A are to be approved with an operative date, pursuant to s 54 of the Act, of 5 October 2012 and a nominal expiry date of 30 June 2015. However, I note that all of the employees to be covered by the Agreements have, or will be paid, the first increase in wages from 1 July 2012.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR530098>

Annexure A

AG2012/10830 Korlim Pty Ltd, NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/10845 Pacific Heights Nursing Home Pty Ltd, NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/10846 Rockdale Nursing Home, NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/10851 Sir Joseph Banks Residential Care Facility, NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/10880 Palms Aged Living Management Services Pty Ltd, NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/10993 Crown Gardens Residential Aged Care NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/10937 Fairlea Aged Aged Care NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/10970 Holy Family Services NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/11018 Garden View Aged Care Pty Ltd NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/11167 The Sir Thomas Mitchell Residential Care Facility, NSWNA & HSU (East Branch) Enterprise Agreement 2012

AG2012/11199 Columbia Nursing Homes Pty Ltd NSWNA & HSU East Branch Enterprise Agreement 2012