Moran Australia (Residential Aged Care) Pty Limited t/a Moran Aged Care

[2024] FWCA 3557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Moran Australia (Residential Aged Care) Pty Limited t/a Moran Aged Care

(AG2024/3249)

MORAN AUSTRALIA (RESIDENTIAL AGED CARE) PTY LIMITED NSW ENTERPRISE AGREEMENT 2023

Aged care industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 10 OCTOBER 2024

Application for approval of the Moran Australia (Residential Aged Care) Pty Limited NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Moran Australia (Residential Aged Care) Pty Limited NSW Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Moran Australia (Residential Aged Care) Pty Limited t/a Moran Aged Care (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the Agreement were sought in relation to the undertakings. The Australian Nursing and Midwifery Federation (NSW Branch) (ANMF) being a bargaining representative for the Agreement advises that supported the undertakings numbered 1 and 2 provided by the Applicant. Undertaking number 3 was not supported by the ANMF, however the undertaking provided addresses a concern I had raised under s.190(1) of the Act in relation to the rates payable to enrolled nurses undergoing pre-registration training who were 21 years of age and over. 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. I propose to accept all of the undertakings provided.

Taking into account the undertakings referred to above and the material filed in support of the application, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

I note that Clause 6 of the Agreement provides that where this Agreement also has provisions regarding matters dealt with under the National Employment Standards (NES) and the provisions in the NES set out in the Act are more favourable to an Employee in a particular respect than those provisions, then the NES will prevail in that respect and the provisions dealing with that matter in this Agreement will have no effect in respect of that Employee.

I note that Clause 45 of the Agreement provides that a workplace delegate as defined by the Act and the relevant Award, will derive their entitlements in accordance with the delegates’ rights clauses in the applicable Award.

The ANMF and the Health Services Union NSW/ACT/QLD (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the case of Moran Australia (Residential Aged Care) Pty Limited, trading as Moran Aged Care, involved an application for the approval of an enterprise agreement. The applicant, Moran Australia, sought to have the Moran Australia (Residential Aged Care) Pty Limited NSW Enterprise Agreement 2023 approved. The dispute centred around whether the agreement met the necessary legal standards for approval, including fairness and compliance with the relevant legislation.

The key legal issues before the court were whether the agreement contained all the mandatory terms required by law, whether it was free from any unfair content, and whether it complied with the requirements of the Fair Work Act 2009. The court also needed to consider whether the agreement was made in good faith and whether it provided for appropriate dispute resolution mechanisms. Additionally, the court needed to assess if the agreement adequately covered all necessary provisions, including terms related to wages, hours of work, and other conditions of employment.

The Fair Work Commission examined the terms of the proposed agreement in detail, assessing whether they met the statutory requirements. The Commission considered the process by which the agreement was made, including whether there was genuine bargaining and whether employees had been adequately consulted. The Commission found that the agreement contained all the mandatory terms and was free from any unfair content. It was concluded that the agreement was made in good faith and provided for appropriate dispute resolution mechanisms. Consequently, the Commission approved the agreement, finding it to be fair and compliant with the Fair Work Act 2009.

The final order of the Commission was that the Moran Australia (Residential Aged Care) Pty Limited NSW Enterprise Agreement 2023 be approved, effective from the date of the decision. The approval ensures that the terms of the agreement will govern the employment conditions of the relevant employees, subject to the provisions of the Fair Work Act 2009 and any applicable awards or registered agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established