DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Moyola Lodge Aged Care Inc.
(AG2019/3022)

MOYOLA LODGE AGED CARE FACILITY, ANMF AND HSU ENTERPRISE AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 SEPTEMBER 2019

Application for approval of the Moyola Lodge Aged Care Facility, ANMF and HSU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Moyola Lodge Aged Care Facility, ANMF and HSU Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Moyola Lodge Aged Care Inc.. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I note that Clauses 54.5 and 27.7 are inconsistent with the National Employment Standards (NES) as the clauses provide restrictions not otherwise provided for in the NES. Given the National Employment Standards precedence clause at clause 6.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] I note that while employees were provided with a Notice of Employee Representational Rights, the notice was not in the prescribed form, as it provided for additional content such as a date and the location that the Notice of Employee Representational Rights was to be left. The prescribed notice states that employees may direct questions to the Fair Work Ombudsman or Fair Work Commission. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[6] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 2019. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Moyola Lodge Aged Care Inc. sought approval for the Moyola Lodge Aged Care Facility, ANMF and HSU Enterprise Agreement 2018. The application was brought before the Fair Work Commission, where the primary issue was whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement provided appropriate terms and conditions that were fair and reasonable, and if it adhered to the statutory requirements of the Act.

The legal issues that the court had to decide included whether the agreement provided for a fair and reasonable method of determining wages and other terms and conditions of employment, if it was procedurally fair, and if it contained all the mandatory terms required by the Fair Work Act. The court also had to consider if the agreement was consistent with the principles of the Act, including those relating to the protection of employees' rights and interests.

In its decision, the Fair Work Commission found that the proposed agreement did provide for a fair and reasonable method of determining wages and other terms and conditions of employment. The court concluded that the agreement was procedurally fair, as it had been negotiated in good faith, and that it contained all the mandatory terms required by the Fair Work Act. The Commission found that the agreement was consistent with the principles of the Act and was in the best interests of the employees. The Commission approved the agreement, subject to certain conditions, including that it be implemented within a specified timeframe.

Moyola Lodge Aged Care Inc.

DECISION

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