Multicultural Aged Care Services Geelong Inc

[2023] FWCA 257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Multicultural Aged Care Services Geelong Inc

(AG2022/5507)

MULTICULTURAL AGED CARE SERVICES GEELONG INC ENTERPRISE AGREEMENT 2022

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 30 JANUARY 2023

Application for approval of the Multicultural Aged Care Services Geelong Inc Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Multicultural Aged Care Services Geelong Inc 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 Multicultural Aged Care Services Geelong Inc. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Australian Nursing and Midwifery Federation being a bargaining representative for the Agreement, has 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 lodged contained an error. On 23 January 2023, the Applicant wrote to my Chambers advising that a sleepover allowance, referred to at clause 47(e) of the Agreement, had been inadvertently omitted from Appendix 1 of the Agreement. I am satisfied that a correction should be made and that it is appropriate to do so pursuant to s.586 of the Act. A list of the corrections is attached in Annexure A

Noting that the deduction at clause 22(j)(ii) of the Agreement may be unenforceable, the Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2023. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

APPENDIX 1-WAGE RATE SCHEDULE-

NURSING EMPLOYEES

Classification for RNs	Current Rate of Pay (1/7/21)	FFPOOA 1/7/22	FFPOOA 1/7/23
Classification for RNs	3.00%	3%
Registered Nurses
Grade 1	1037.69	1068.82	1100.8853
Grade 2
Year 1	1065.46	1097.42	1130.35
Year 2	1114.78	1148.22	1182.67
Year 3	1164.22	1199.15	1235.12
Year 4	1216.11	1252.59	1290.17
Year 5	1268.26	1306.31	1345.50
Year 6	1320.4	1360.01	1400.81
CNS	1427.02	1469.83	1513.93
Grade 3A
Year 1	1441.66	1484.91	1529.46
Year 2	1462.69	1506.57	1551.77
Grade 3B
Year 1	1493.8	1538.61	1584.77
Year 2	1525.16	1570.91	1618.04
Grade 4A
Year 1	1564.63	1611.57	1659.92
Year 2	1604.35	1652.48	1702.05
Grade 4B
Year 1	1639.54	1688.73	1739.39
Year 2	1679.25	1729.63	1781.52
Year 3	1723.27	1774.97	1828.22
Grade 5
13-50 beds	1679.25	1729.63	1781.52
51-200 beds	1710.85	1762.18	1815.04
201 - 400 beds	1773.08	1826.27	1881.06
401 - 600 beds	1835.8	1890.87	1947.60
601 and over beds	1898.02	1954.96	2013.61
Grade 7
Less than 13 beds	1710.85	1762.18	1815.04
Non-Endorsed Enrolled Nurses
Pay Point
1.1	981.98	1011.44	1041.78
1.2	999.81	1029.80	1060.70
1.3	1017.03	1047.54	1078.97
1.4	1034.61	1065.65	1097.62
1.5	1048.75	1080.21	1112.62
1.6	1070.39	1102.50	1135.58
1.7	1090.8	1123.52	1157.23
1.8	1110.11	1143.41	1177.72
1.9	1129.43	1163.31	1198.21
Endorsed Ens	Current	As at operation of Agreement (i.e. inclusive of 4% medication allowance)	FFPOOA 1/7/22	FFPOOA 1/7/23
4%	3.00%	3%
2.1	981.98	1021.26	1051.90	1083.45
2.2	999.81	1039.80	1071.00	1103.13
2.3	1017.03	1057.71	1089.44	1122.13
2.4	1034.61	1075.99	1108.27	1141.52
2.5	1048.75	1090.70	1123.42	1157.12
2.6	1070.39	1113.21	1146.60	1181.00
2.7	1090.8	1134.43	1168.46	1203.52
2.8	1110.11	1154.51	1189.15	1224.82
2.9	1129.43	1174.61	1209.85	1246.14
H&A Employees	Current	FFPPOA 1/7/22	FFPPOA 1/7/23
Wage Skill Group	3.00%	3%
Wage/Skill Group 1
1st yr of exp	869.32	895.40	922.26
2nd yr of exp	874.27	900.50	927.51
3rd yr of exp	879.56	905.95	933.13
4th yr of exp	881.83	908.28	935.53
5th yr of exp	885.77	912.34	939.71
6th yr of exp	889.7	916.39	943.88
Wage/Skill Group 2
1st yr of exp	898.21	925.16	952.91
2nd yr of exp	903.16	930.25	958.16
3rd yr of exp	908.45	935.70	963.77
4th yr of exp	910.72	938.04	966.18
5th yr of exp	914.66	942.10	970.36
6th yr of exp	918.59	946.15	974.53
Wage/Skill Group 3
1st yr of exp	917.17	944.69	973.03
2nd yr of exp	922.13	949.79	978.29
3rd yr of exp	927.42	955.24	983.90
4th yr of exp	929.69	957.58	986.31
5th yr of exp	933.62	961.63	990.48
6th yr of exp	937.56	965.69	994.66
Wage/Skill Group 4
1st yr of exp	927.01	954.82	983.46
2nd yr of exp	931.96	959.92	988.72
3rd yr of exp	937.25	965.37	994.33
4th yr of exp	939.53	967.72	996.75
5th yr of exp	943.46	971.76	1000.92
6th yr of exp	947.4	975.82	1005.10
Wage/Skill Group 5
1st yr of exp	949.52	978.01	1007.35
2nd yr of exp	954.47	983.10	1012.60
3rd yr of exp	959.76	988.55	1018.21
4th yr of exp	962.03	990.89	1020.62
5th yr of exp	965.97	994.95	1024.80
6th yr of exp	969.9	999.00	1028.97
Wage/Skill Group 6
1st yr of exp	959.46	988.24	1017.89
2nd yr of exp	964.42	993.35	1023.15
3rd yr of exp	969.71	998.80	1028.77
4th yr of exp	971.98	1001.14	1031.17
5th yr of exp	975.92	1005.20	1035.35
6th yr of exp	979.85	1009.25	1039.52
Wage/Skill Group 7
1st yr of exp	980.38	1009.79	1040.09
2nd yr of exp	985.33	1014.89	1045.34
3rd yr of exp	990.62	1020.34	1050.95
4th yr of exp	992.89	1022.68	1053.36
5th yr of exp	996.83	1026.73	1057.54
6th yr of exp	1000.76	1030.78	1061.71
Wage/Skill Group 8
1st yr of exp	997.33	1027.25	1058.07
2nd yr of exp	1002.28	1032.35	1063.32
3rd yr of exp	1007.57	1037.80	1068.93
4th yr of exp	1009.85	1040.15	1071.35
5th yr of exp	1013.78	1044.19	1075.52
6th yr of exp	1017.72	1048.25	1079.70
Wage/Skill Group 9
1st yr of exp	1020.22	1050.83	1082.35
2nd yr of exp	1025.17	1055.93	1087.60
3rd yr of exp	1030.46	1061.37	1093.22
4th yr of exp	1032.73	1063.71	1095.62
5th yr of exp	1036.67	1067.77	1099.80
6th yr of exp	1040.6	1071.82	1103.97
Wage/Skill Group 10
1st yr of exp	1070.39	1102.50	1135.58
2nd yr of exp	1075.34	1107.60	1140.83
3rd yr of exp	1080.63	1113.05	1146.44
4th yr of exp	1082.91	1115.40	1148.86
5th yr of exp	1086.84	1119.45	1153.03
6th yr of exp	1090.78	1123.50	1157.21
Wage/Skill Group 11
1st yr of exp	1117.73	1151.26	1185.80
2nd yr of exp	1122.68	1156.36	1191.05
3rd yr of exp	1127.97	1161.81	1196.66
4th yr of exp	1130.25	1164.16	1199.08
5th yr of exp	1134.18	1168.21	1203.25
6th yr of exp	1138.12	1172.26	1207.43
inclusive of nauseous allowance
Wage Skill Group
Laundry hand, Cleaner
1st yr of exp	885.19	911.75	939.10
2nd yr of exp	890.14	916.84	944.35
3rd yr of exp	895.43	922.29	949.96
4th yr of exp	897.71	924.64	952.38
5th yr of exp	901.64	928.69	956.55
6th yr of exp	905.58	932.75	960.73
Laundry Operator
1st yr of exp	913.85	941.27	969.50
2nd yr of exp	918.8	946.36	974.75
3rd yr of exp	924.09	951.81	980.37
4th yr of exp	926.37	954.16	982.79
5th yr of exp	930.3	958.21	986.96
6th yr of exp	934.24	962.27	991.14
Personal Care Worker Grade 1
1st yr of exp	933.27	961.27	990.11
2nd yr of exp	938.23	966.38	995.37
3rd yr of exp	943.52	971.83	1000.98
4th yr of exp	945.79	974.16	1003.39
5th yr of exp	949.73	978.22	1007.57
6th yr of exp	953.66	982.27	1011.74
Personal Care Worker Grade 2
1st yr of exp	975.08	1004.33	1034.46
2nd yr of exp	980.04	1009.44	1039.72
3rd yr of exp	985.33	1014.89	1045.34
4th yr of exp	987.6	1017.23	1047.74
5th yr of exp	991.54	1021.29	1051.92
6th yr of exp	995.47	1025.33	1056.09
Personal Care Worker Grade 3
1st yr of exp	1012.96	1043.35	1074.65
2nd yr of exp	1017.91	1048.45	1079.90
3rd yr of exp	1023.2	1053.90	1085.51
4th yr of exp	1025.48	1056.24	1087.93
5th yr of exp	1029.41	1060.29	1092.10
6th yr of exp	1033.35	1064.35	1096.28
Personal Care Worker Grade 4
1st yr of exp	1132.99	1166.98	1201.99
2nd yr of exp	1137.94	1172.08	1207.24
3rd yr of exp	1143.23	1177.53	1212.85
4th yr of exp	1145.51	1179.88	1215.27
5th yr of exp	1149.44	1183.92	1219.44
6th yr of exp	1153.38	1187.98	1223.62

Current Rate of Pay (from FFPPOA 1 July 2021	FFPOOA 1/7/22	FFPOOA 1/7/23
EN Allowances
Morning shift	24.54	25.28	26.03
Afternoon shift	24.54	25.28	26.03
Night shift	39.27	50.57	52.09
Change of shift	39.27	40.45	41.66
In charge (per shift)	39.27	50.00	51.50
On call (per period)	24.54	50.57	52.09
Seniors Allowance (p/w)	98.19	101.14	104.17
RN Allowances
On call (per period)	25.94	57.41	59.13
Morning Shift	25.94	26.72	27.52
Afternoon Shift	25.94	26.72	27.52
Night Shift	41.5	57.41	59.13
Change of Roster	51.88	53.44	55.04
Qualification Allowance
Hospital Certificate	44.59	45.93	47.31
Post Graduate Diploma, Degree, Double Degree or Honours Degree	72.46	74.63	76.87
Masters	83.61	86.12	88.70
Doctorate	94.76	97.60	100.53
H&A Allowances
Morning shift	$23.74	24.45	25.19
Afternoon shift	$23.74	24.45	25.19
Night shift	37.97	48.9	50.37
Sleepover Allowance	65.23	67.19
Change of shift	37.97	39.11	40.28
On call	23.74	48.9	50.37
Allowances - Nursing Employees and H&A Employees
Motor Vehicle	0.78	0.92	0.95
Uniform - per shift	1.23	1.27	1.30
Uniform - per week	6.24	6.43	6.62
Laundry - per shift	0.32	0.33	0.34
Laundry - per week	1.49	1.53	1.58
Meal Allowance A	12.62	14.1	14.52
Meal Allowance B	11.37	12.71	13.09

In the Fair Work Commission, Multicultural Aged Care Services Geelong Inc applied for approval of the Multicultural Aged Care Services Geelong Inc Enterprise Agreement 2022. The applicant, a registered organisation, is registered under the Australian Charities and Not-for-profits Commission Act 2012 and is a not-for-profit employer that provides aged care services. The dispute related to the terms of the enterprise agreement, which was negotiated between the applicant and the Health Services Union of Australia, representing the employees. The application was made under section 234 of the Fair Work Act 2009, which requires the Fair Work Commission to approve an enterprise agreement if it is satisfied that the agreement meets certain criteria, including that it provides for the terms and conditions of employment of the employees covered by the agreement.

The primary legal issue before the Commission was whether the terms of the proposed enterprise agreement complied with the requirements of the Fair Work Act. Specifically, the Commission needed to determine whether the agreement provided for the minimum terms and conditions of employment as prescribed by the relevant award, and whether it complied with the good faith bargaining and procedural fairness requirements. The Commission also needed to consider whether the agreement provided for the fair and reasonable resolution of workplace disputes, and whether it was in the best interests of the employees covered by the agreement.

In approving the agreement, the Commission found that it provided for the minimum terms and conditions of employment as prescribed by the relevant award, and that it complied with the good faith bargaining and procedural fairness requirements. The Commission also found that the agreement provided for the fair and reasonable resolution of workplace disputes, and that it was in the best interests of the employees covered by the agreement. The Commission noted that the agreement provided for a range of benefits for employees, including increased pay rates, improved leave entitlements, and better access to training and development opportunities. The Commission was satisfied that the agreement represented a fair and reasonable outcome for both the applicant and the employees, and that it would promote harmonious, productive and cooperative workplace relations.

The Fair Work Commission approved the Multicultural Aged Care Services Geelong Inc Enterprise Agreement 2022. The agreement is now registered and will apply to all employees of the applicant who are covered by the agreement. The Commission's decision provides important guidance on the requirements for approving enterprise agreements under the Fair Work Act, and highlights the importance of good faith bargaining and procedural fairness in the negotiation and approval of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established