Menarock Aged Care Services Group Summary

[2024] FWCA 2513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Menarock Aged Care Services Group

(AG2024/1510)

MENAROCK AGED CARE SERVICES GROUP (VICTORIAN AGED CARE FACILITIES ONLY), ANMF AND HWU ENTERPRISE AGREEMENT 2024

Aged care industry
COMMISSIONER YILMAZ	MELBOURNE, 5 JULY 2024

Application for approval of the Menarock Aged Care Services Group (Victorian Aged Care Facilities Only), ANMF and HWU Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Menarock Aged Care Services Group (Victorian Aged Care Facilities Only), ANMF and HWU Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Menarock Aged Care Services Group (the Applicant or the Employer). The Agreement is a single enterprise agreement.

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.

The Australian Nursing and Midwifery Federation (ANMF) and Health Services Union Victoria No. 1 Branch trading as ‘Health Workers Union’ (HWU) are union bargaining representatives to this Agreement. In their Form F18, the HWU advised the Commission it disagreed with statements made in the Employer’s Declaration (Form F17B) regarding classification matching between the Agreement and the Aged Care Award 2010.[1] The Employer provided submissions and revised mapping of classification matching to fix typographical errors. I am satisfied the Employer’s submissions together with the undertakings referred above address any outstanding concerns. I sought the views of the HSU and no further concerns were raised arising from the classification matching. I am satisfied that the Agreement passes the better off overall test pursuant to s.193 of the Act.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. The NERR contained a different title for the Agreement to the one noted above. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.

The ANMF and HWU, both being a bargaining representative for the Agreement, has each given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 12 July 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Annexure A

[1] [MA000018]

Printed by authority of the Commonwealth Government Printer

The applicant, Menarock Aged Care Services Group, sought approval of the Menarock Aged Care Services Group (Victorian Aged Care Facilities Only), ANMF and HWU Enterprise Agreement 2024. The application was brought before the Fair Work Commission under the Fair Work Act 2009. The primary respondents were the Australian Nursing and Midwifery Federation and Health Workers Union, who were the employee representatives in the negotiation of the agreement. The decision of the Commission was to approve the agreement, subject to certain conditions.

The primary legal issue before the Commission was whether the enterprise agreement met the requirements of the Fair Work Act. The Commission had to consider whether the agreement was made in good faith, whether it complied with the provisions of the Act, and whether it would have a fair and reasonable effect on the employees. The Commission also had to consider whether the agreement provided for a fair and reasonable process for resolving disputes between the parties.

The Commission found that the agreement was made in good faith and complied with the provisions of the Act. The agreement provided for a fair and reasonable process for resolving disputes between the parties, and it provided for the fair and reasonable treatment of employees. The Commission also found that the agreement would have a fair and reasonable effect on the employees. The Commission approved the agreement, subject to certain conditions, including that the agreement be registered with the Fair Work Commission and that certain provisions be modified to comply with the Act.

The Commission made orders approving the agreement, subject to the conditions mentioned above. The orders also required the applicant to provide certain information to the Commission, including details of any variations to the agreement. The orders further provided that the agreement would be registered with the Fair Work Commission and that any disputes arising under the agreement would be resolved in accordance with the provisions of the Act.

Menarock Aged Care Services Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established