Maclean Valley Nursing Home Pty Limited and others

[2012] FWA 8939

[2012] FWA 8939

FAIR WORK AUSTRALIA

DECISION

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

Maclean Valley Nursing Home Pty Limited and others
(AG2012/11327, AG2012/11329, AG2012/11378, AG2012/11453)

DEPUTY PRESIDENT SAMS SYDNEY, 24 OCTOBER 2012

Application for approval of numerous aged care industry enterprise agreements.

[1] This decision relates to four 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 four single enterprise agreements (‘the Agreements’), identified in Annexure A. All the applicants were represented by Leading Age Services Australia NSW-ACT (‘Leading Age’), which 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 NSW Branch (‘the HSU’) (collectively, ‘the Unions’).

[2] For convenience, and as a matter of commonsense, all the matters were joined, by consent, at an e-hearing in Chambers of the applications on 18 October 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 and eleven more in [2012] FWA 8728. I understand more applications of a similar nature are to follow.

[3] 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]

[4] In each of the applications, the employer submitted a Form 17 setting out the comparative relationship between the terms and conditions of the Agreement and the relevant reference instruments. 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 and agree that the Agreements meet the BOOT. In this respect, I note 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. 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.

[5] 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 further note that the dispute resolution procedures provide for conciliation and arbitration by FWA and consent arbitration in respect to workload management issues. Finally, I note that identical signed undertakings that clarify classification levels and correct some minor drafting errors have been provided and shall be annexed to each Agreement. The undertakings shall become terms of the Agreements.

[6] I will issue individual decisions specifying that each of the Agreements listed in Annexure A is to be approved with an operative date, pursuant to s 54 of the Act, of 25 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 been, 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, PR530399>

Annexure A

AG2012/11327 Maclean Valley Nursing Home Pty Ltd trading as Mareeba Aged Care NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/11329 Salmar Holdings Pty Ltd t/a Beecroft Nursing Home, NSWNA & HSU East Branch Enterprise Agreement 2012

AG2012/11378 Plateau View Aged care Pty Ltd NSWNMA & HSU-NSW Branch Enterprise Agreement 2012

AG2012/11453 Clermont Aged Care NSWNMA & HSU NSW Branch Enterprise Agreement 2012