Nazareth Care
[2025] FWCA 150
•15 JANUARY 2025
| [2025] FWCA 150 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Nazareth Care
(AG2024/5045)
NAZARETH CARE – TAMWORTH ENTERPRISE AGREEMENT 2023
| Aged care industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 15 JANUARY 2025 |
Application for approval of the Nazareth Care – Tamworth Enterprise Agreement 2023
Introduction
Nazareth Care (the Employer) has made an application for approval of an enterprise agreement known as the Nazareth Care – Tamworth Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by either the Aged Care Award 2010 (Aged Care Award) or the Nurses Award 2020 (Nurses Award).
Correction of document under s.586
The coverage clause of the Agreement, specifically clause 5.1(c), currently states: "Except at (c), all those Employees of the Employer performing work within the classifications contained in this agreement." The Employer has submitted that the phrase "Except at (c)" should be corrected to read "Except at (d)" as (d) states “The Agreement does not apply to nor cover persons permanently appointed as a Manager, Executive or Facility Manager.”
I have allowed a correction of clause 5.1(c) of the Agreement pursuant to s.586 in the terms sought by the Employer as I am satisfied that the correction does not alter any substantive matter in the Agreement.
Casual Employees Entitled to Vote
The Commission identified that 47 casual employees (out of 108 employees) were engaged by the Employer. The Employer provided submissions showing that 31 out of the 47 casual employees were employed at the time and entitled to vote. I am satisfied that in light of the Full Bench decision in Appeal by Kmart Australia Limited t/a Kmart and others,[1] the requirement in s. 181(1) of the Act has been met.
Apprentices
It is unclear if Apprentices are intended to be engaged under the Agreement. The Employer submitted that it does not employ Apprentices. I am therefore satisfied that it is reasonably foreseeable that Apprentices will not be employed during the life of the Agreement.
Trainees
Clause 50 of the Agreement states that trainees may be engaged, and their Training Agreement shall show the rates to be paid as specified at 'E.4 Minimum rates' of the Miscellaneous Award 2020 with all other terms of employment will conform to those in the Agreement. Trainees are not covered under the Nurses Award. Clause 20 of the Aged Care Award provides that Trainees are paid the National Training Wage in Schedule E of the Miscellaneous Award. As such, it is unclear how they can be considered better off overall.
The Employer provided an undertaking to address this issue.
Sleepovers
The Agreement is silent on sleepover provisions which are contained in clause 22.9 of the Aged Care Award. The Employer submitted that it does not require employees to work sleepover shifts.
Definition of a Shiftworker for the Purposes of the National Employment Standards (NES)
Clause 32.1 (d)(i) of the Agreement defines a shiftworker for the purposes of the NES. This definition appears to raise some inconsistency with clause 28.2 of the Aged Care Award.
The Employer provided an undertaking to address this issue.
Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:
The rates of pay for the Lifestyle & Leisure Level 2 Unqualified classification appears to fall below the Award. This raises the concern that employees engaged as Lifestyle & Leisure Level 2 Unqualified classifications may not be better off overall for the purpose of s.193 of the Act.
Clause 22.1(c) of the Aged Care Award provides that the ordinary hours of work will be worked either eight hours on a day shift or ten hours on a night shift. Clause 19 of the Agreement states that the shift length or ordinary hours of work per day will be a maximum of 10 hours, thus, the Agreement does not appear to make a distinction between day and night shifts. Therefore, employees working in excess of 8 hours on a day shift would not be entitled to overtime as they would have otherwise under the Award. The rates of pay may not be high enough to compensate for this reduction.
Clause 25.1(c)(i) of the Aged Care Award provides that casual employees are entitled to 187.5% for the first 2 hours and 250% thereafter for overtime from Monday to Friday. Clause 28 of the Agreement provides that casual aged care employees are entitled to 175% for the first 2 hours and 225% thereafter. The rates of pay may not be high enough to compensate for this reduction.
Section 190 Undertakings
The employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached in Schedule E. 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.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The Health Services Union – NSW/ACT/QLD (HSU) and the Australian Nursing and Midwifery Federation – NSW Branch (ANMF), 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 HSU and the ANMF
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 January 2025. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
[1] [2019] FWCFB 7599
Printed by authority of the Commonwealth Government Printer
<AE527612 PR783329>
0
0
0