Martin Luther Homes Boronia Inc T/A Martin Luther Homes

[2022] FWCA 3793

[2022] FWCA 3793

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Martin Luther Homes Boronia Inc T/A Martin Luther Homes

(AG2022/3914)

Martin Luther Homes Boronia Inc. Aged Care Enterprise Agreement 2022 - 2025

Aged care industry
COMMISSIONER O'NEILL	MELBOURNE, 28 OCTOBER 2022

Application for approval of the Martin Luther Homes Boronia Inc. Aged Care Enterprise Agreement 2022 - 2025

1. Martin Luther Homes has applied for approval of an enterprise agreement known as the Martin Luther Homes Boronia Inc. Aged Care Enterprise Agreement 2022-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Australian Nursing and Midwifery Federation and the Health Services Union being bargaining representatives for the Agreement, have 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 22(a)(ii) – Annual Leave -  Employee’s entitlement to leave;

·   Clause 22(g)(ii) – Annual Leave – Weekend work;

·   Clause 24(e)(v) – Personal/Carers Leave – Personal leave to care for an immediate family or household member;

·   Clause 24(f) – Personal/Carers Leave – Evidence supporting claim;

·   Clause 26(a)(iii) – Long Service Leave – Entitlement; and

·   Clause 26(h)(i) – Long Service Leave – Requests for alterations to payment and quantum of leave.

However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE517983  PR747317>

Annexure A