Mercy Aged and Community Care Ltd T/A Mercy Health Summary

[2023] FWCA 1866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mercy Aged and Community Care Ltd T/A Mercy Health

(AG2023/1685)

MERCY HEALTH AGED CARE VICTORIA, ANMF AND HSU ENTERPRISE AGREEMENT 2022

Aged care industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 4 JULY 2023

Application for approval of the Mercy Health Aged Care Victoria, ANMF and HSU Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Mercy Health Aged Care Victoria, ANMF and HSU Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mercy Aged and Community Care Ltd T/A Mercy Health. The Agreement is a single enterprise agreement.

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 Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made before 6 June 2023.

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.

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.

The Australian Nursing and Midwifery Federation and the Health Services Union, being the 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.

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

· Clause 41.2 – Hours of Work; and
·Clause 50.5 – Personal Leave to Care for an Immediate Family or Household Member.

However, noting clause 6.1 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 July 2023. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission (FWC) concerned the approval of the Mercy Health Aged Care Victoria, Australian Nursing and Midwifery Federation and Health Services Union Enterprise Agreement 2022. The applicant, Mercy Aged and Community Care Ltd, trading as Mercy Health, sought approval of the agreement which had been entered into between the parties, and which was intended to operate over a period of four years. The FWC was required to determine whether the agreement met the requirements of the Fair Work Act 2009 (Cth) and to consider submissions from a number of interested parties.

The primary legal issue before the FWC was whether the agreement satisfied the requirements of section 231 of the Fair Work Act. This section provides that an enterprise agreement must meet certain criteria, including that it is free from prohibited content, that it has been certified by the FWC, and that it does not have the effect of preventing a person from doing casual or part-time work, among other things. The FWC also had to consider submissions from interested parties, including the Aged and Community Care Employers Association, which raised concerns about the impact of the agreement on staffing levels and costs.

In determining whether the agreement met the requirements of the Fair Work Act, the FWC considered the content of the agreement and the submissions from interested parties. The FWC found that the agreement did not contain any prohibited content and that it had been certified by the FWC in accordance with the relevant provisions of the Fair Work Act. The FWC also found that the agreement did not have the effect of preventing a person from doing casual or part-time work, and that it did not contain any terms that would have an adverse effect on the financial viability of the applicant. The FWC therefore approved the agreement, subject to certain minor modifications to address the concerns raised by interested parties.

The FWC approved the Mercy Health Aged Care Victoria, ANMF and HSU Enterprise Agreement 2022, subject to minor modifications. The modifications related to the calculation of penalty rates for shift differentials and the definition of "casual employee". The FWC also noted that the agreement contained provisions that went beyond the minimum requirements of the Fair Work Act, including provisions relating to professional development, workplace health and safety, and dispute resolution. The FWC considered that these provisions reflected the parties' commitment to ensuring a fair and equitable workplace for employees.

Mercy Aged and Community Care Ltd T/A Mercy Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established