Melaleuca Home for the Aged Inc.
[2024] FWCA 4066
•21 NOVEMBER 2024
| [2024] FWCA 4066 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Melaleuca Home for the Aged Inc.
(AG2024/3864)
MELALEUCA HOME FOR THE AGED INC. GENERAL STAFF ENTERPRISE AGREEMENT 2024
| Aged care industry | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 21 NOVEMBER 2024 |
Application for approval of the Melaleuca Home for the Aged Inc. General Staff Enterprise Agreement 2024
Introduction
Melaleuca Home for the Aged Inc. (the Employer) has made an application for approval of an enterprise agreement known as the Melaleuca Home for the Aged Inc. General Staff Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 25 March 2024 and the Agreement was made on 1 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
Terms of the Agreement
Clause 28(e) of the agreement provides that where the Employer facilitates acceptable alternative employment, the provisions of the Agreement which pertain to redundancy will not apply. Although clause 28(e) provides that redundancy payment obligations are subject to exclusions pursuant to ss.120 – 123 of the Act, it is not clear on the face of the clause that any variation to redundancy pay must be on application and upon satisfaction by the Commission. To the extent that the clause does not otherwise restate that exclusions to redundancy payments are subject to approval of an application to the Commission, I note that this clause is inconsistent with the Act and therefore unenforceable.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Aged Care Award 2020 is taken to be a term of the Agreement.
Section 190 Undertakings
The employer 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.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The Health Services Union (HSU) and the Australian Nursing and Midwifery Federation (ANMF), 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 HSU and the ANMF.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 November 2024. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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ANNEXURE A
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